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Pathways to State Failure: Greed or Grievance

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INTERNATIONAL JOURNAL
OF TERRORISM AND POLITICAL
HOT SPOTS
Volume 9, Issue 1, 2014
TABLE OF CONTENTS
Pathways to State Failure: Greed or Grievance? 1
Tiffiany Howard and Brendan Morris
Countering Violent Extremism in the United States 21
Jerome P. Bjelopera
Detention of U.S. Persons As Enemy Belligerents 53
Jennifer K. Elsea
New York
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PATHWAYS TO STATE FAILURE:
GREED OR GRIEVANCE?
Tiffiany Howard* and Brendan Morris
University of Nevada, Las Vegas,
Department of Political Science, Las Vegas, NV, US
ABSTRACT
Of the many proponents of the greed trumps grievance argument, these scholars have
argued that measures of social grievance, such as inequality, a lack of democracy, and
ethnic and religious divisions, have had little systematic effect on the risk of civil war
(Berdal and Malone, 2000; Collier, 2007; Collier, 2009; Collier and Hoeffler, 2004;
Collier and Sambanis, 2005;Hoeffler, 2011). They go on to find that it is primarily the
financial viability; i.e., greed motivates rebel organizations. This research does not reject
this collection of findings. Instead, we evaluate a similar dynamic and the role greed and
grievance play in the occurrence of the phenomenon of state failure. While the dynamics
of state failure and civil war share similarities, state failure scholars have found there are
unique precursors and features of state failure which distinguish this phenomenon from
ethnic and civil conflicts. Further, research on state failure illustrates that this
phenomenon encompasses a multitude of factors, all of which have a devastating impact
on the state and far reaching implications that extend beyond the impact of civil conflict.
Consequently, this analysis investigates the greed versus grievance argument from the
lens of state failure. The findings of this research suggest that both social grievances and
the opportunity for greed can contribute to a state‘s failure.
INTRODUCTION
Research has found that ―[state failure events, such as] internal wars and political
upheavals are the antecedents of most humanitarian emergencies‖ (Harff and Gurr, 1998).
Consequently, the belief is that a better understanding of the dynamics that contribute to state
failure will allow policymakers to better predict, anticipate, and prevent the failure of nation-
states and subsequent humanitarian crisesand that is why a great deal of research has been
devoted to first, defining state failure, and second, identifying the causes of this phenomenon
(Chandler, 2009; Chesterman, Ignatieff, and Thakur, 2005; Debiel and Klein, 2002; Esty et
* Corresponding author: tiffiany.howard@unlv.edu.
morrisb9@unlv.nevada.edu.
Tiffiany Howard and Brendan Morris
2
al., 1995; Goldstone et al., 1998, 1999; Goldstone, 2008; Author, 2008, 2010a, 2010b;
Miliken et al., 2003; Putnam, 1996; Rotberg, 2003, 2004; Zartman, 1995).
This paper builds upon the foundation established by state failure scholars, and
acknowledges the importance of understanding and defining state failure, as well as
identifying the relevant causes of this phenomenon. However, this work diverges somewhat
from existing literature by exploring the much discussed greed versus grievance theory and
applying it to the dynamic of state failure. While scholars have argued that measures of social
grievance, such as inequality, a lack of democracy, and ethnic and religious divisions, have
had little systematic effect on the risk of civil war when compared to economic incentives
(Berdal and Malone, 2000; Collier, 2007; Collier, 2009; Collier and Hoeffler, 2004;Collier
and Sambanis, 2005; Hoeffler, 2011), we suggest in this paper that, unlike with civil conflicts,
social grievances are a greater contributing factor to state failure than economic measures,
which raises questions regarding the wisdom of relying upon foreign aid as a preventive
measure of state collapse.
BACKGROUND
Defining State Failure
According to the Rotberg et al. studies, state failure occurs in stages and can be classified
as: 1) weak, 2) failing, 3) failed, and 4) collapsed (2003; 2004). While this classification is
applicable to the Rotberg et al. studies, it diverges sharply from the classification of states
employed by the State Failure Task Force (1995, 1998, 2000). The scholars that comprise the
State Failure Task Force simply distinguish between a failed state and a non-failed state. They
employ this distinction because it allows them to include more cases in the dataset. Another
important distinction between the Rotberg et al. studies (2003; 2004) and the State Failure
Task Force is that Rotberg and his contributors classify a state as failed according to its ability
to provide essential public goods whereas the State Failure Task Force denotes a state as
failed if it experiences a revolutionary war, an ethnic war, an adverse or disruptive regime
transition, or genocide(s) and/or politicide(s) in a given year (1995, 1998, 2000).
While we consider the findings of both studies compelling, we believe it is important to
arrive at a comprehensive definition of state failure, which we argue neither study does
adequately. Providing the public good of security does not exclude a nation-state from failure,
as Rotberg et al. suggest (2003; 2004), whereas the presence of conflict does not always put a
nation-state at risk of failure, which is what the State Failure Task Force would have you
believe. For example, Rotberg and associates classify Sudan as a failing state because it
provides public goods in the northern region only, whereas the State Failure Task Force
classifies Sudan as a failed state because it has been embroiled in a civil and ethnic conflict
for more than twenty years. Similarly, Colombia, which boasts a high crime rate, would be
classified as failing state by Rotberg and associates given that it provides the public good of
security in its urban areas, but the State Failure Task Force classifies Colombia as a state not
at risk for failure because it does not exhibit the presence of the conflicts identified as failure.
Also, while Rotberg and associates classify Haiti as a weak state because it provides public
goods to certain groups in urban areas, the State Failure Task Force identifies Haiti as a state
Pathways to State Failure: Greed or Grievance?
3
at risk for failure because of the presence of revolutionary war and abrupt regime transitions.
The discrepancies between the two studies are driven by the fact that they define state failure
very differently, and we argue neither definition is sufficient in its characterization of state
failure.
This analysis takes a position between the two overarching bodies of literature and
echoes a similar position advanced by another vein of literature which focuses on states that
lack either effectiveness or legitimacy (Chandler, 2009; Chesterman, Ignatieff, and Thakur,
2005; Debiel and Klein, 2002;Goldstone, 2008; Goldstone et al., 1998; 1999; Author, 2008;
2010a, 2010b; Miliken et al., 2003; Zartman, 1995). Consequently, states relying upon
legitimacy can fail when they ―reveal themselves to be corrupt, incompetent, too dependent
on foreign powers, or become perceived as unjust through their policies or actions‖
(Goldstone, 2008, p. 286). Similarly, states which rely upon effectiveness can fail when they
are no longer able to provide security, along with ―the economic benefits or coercive strength
that sustains them‖ (Goldstone, 2008, p. 286). This vein of literature focuses on a state‘s
ability to achieve both effectiveness and legitimacy. Therefore, the absence of one or both of
these factors reflects a state that is failing or has failed, respectively.
THE ARGUMENT AND HYPOTHESES
Why Do States Fail?
We argue that a better understanding of why states fail can be found in the nexus of the
greed versus grievance argument. Of the many proponents of the greed trumps grievance
argument, these scholars have argued that measures of social grievance, such as inequality,
lack of democracy, and ethnic and religious divisions, have had little systematic influence on
the risk of civil conflict (Berdal and Malone, 2000; Collier, 2007; Collier, 2009; Collier and
Hoeffler, 2004; Collier and Sambanis, 2005; Hoeffler, 2011). They go on to find that it is
primarily the financial viability of a state which motivates rebel organizations. This research
does not reject these findings. Instead, this analysis investigates the greed versus grievance
argument from the lens of state failure and postulates, that when it comes to civil war, greed
may be the primary contributor, but in the case of state failure, social grievances help us
better understand why some states fail while other weak states languish.
Greed versus Grievance
First introduced by Collier and Hoeffler in 1998 under the title, On Economic Causes of
Civil War, the greed versus grievance argument has shaped how social scientists approach the
study of rebellion and civil war. Using measures of greed captured by primary commodity
exports, and two measures of per-capita GDP, along with measures of grievances captured by
ethnic and religious fractionalization, ethnic dominance, and income inequality, the authors
found that it is primarily the financial viability of a state which motivates rebel organizations
and drives civil war; not social grievances. In essence, greed refers to the economic
Tiffiany Howard and Brendan Morris
4
opportunity of groups to engage in conflict which thus makes loot seeking the main reason
behind civil wars.
Since the publication of this work, Collier and associates (2003) have continued to
emphasize the importance of economic measures by further arguing that civil wars occur in
impoverished failed states, governed by corrupt regimes, whereby the conflict is sustained by
competition over natural resource rents, such as diamonds or oil. To further drive home the
point made by Collier, and despite their lack of support for the greed argument, Fearon and
Laitin (2003) still find that ethnic and religious diversity appear to have at best a marginal
impact on the risk for civil war.
Yet, to buy into the greed argument, one would have to ignore the work of Gurr (1968)
who sets forth a proposition in his now classic work, Why Men Rebel, that individuals resort
to violence due to perceptions of relative deprivation. Thus, an individual‘s frustration
regarding perceived deprivation (hence it being relative) fosters aggression within that person
which can then manifest itself in the form of acts of political violence such as rebellions, riots,
revolutions, and even terrorism. Most recently, Stewart (2000; 2005; 2008) has also
established that grievances fuel internal conflict. While she notes that greed can be a
significant factor in the cause of civil wars, and that it often interacts with grievances in a
variety of ways, she points out that it is horizontal inequality, and not vertical inequality
measured by Collier, that contributes to civil wars.
Commonly used measures of inequality, namely the Gini Coefficient, suffer from a
number of measurement errors, due to substantial missing observations and their limitation in
only capturing vertical inequality (i.e., inequality between individuals). What Stewart has
found is that it is horizontal inequality, or rather the inequality between groups that explains
civil wars.
This inequality is due to the discrimination and marginalization towards groups in an
inequitable society (Stewart 2005, 2008; Hoeffler 2011). Stewart examines nine cases in
which horizontal inequality is the impetus for political instability. And her argument is further
supported by Regan (2009) who evaluates structural poverty, as well as Murshed and Gates
(2005) and Macours (2009) who show that in Nepal an increase in horizontal inequality
sparked the Maoist rebellion.
At the opening of this paper, we noted the many proponents of the greed trumps
grievance argument. As a consequence, a great deal of research has been devoted to
challenging the sole importance of greed as a cause of civil war. In turn, research has revealed
that the social grievances of inequality and ethnic religious tension do appear to have an
impact on civil war. There is less of a consensus regarding the desire for democracy as a
contributor of civil war (Charters 1994; Eubank and Weinberg, 1994; 1998, 2001; Eyerman,
1998; Li, 2005; Schmid 1992). However, there is evidence to suggest that transitional
democracies are more vulnerable to state failure types of crises than are either full
democracies or full autocracies (Esty, 1995).
Therefore, this work specifically tackles the greed versus grievance argument and applies
it to state failure in an effort to determine whether or not grievance based issues, as opposed
to economic factors, are responsible for state failure.
Pathways to State Failure: Greed or Grievance?
5
Research Questions and Hypotheses
1) Why do some States Fail?
a. States fail because of ethnic/religious tensions, when coupled with the main
grievance based issue of relative poverty. Thus, it is the economic
marginalization or relative poverty of an ethnic/racial/religious group that leads
to state failure and not the potential for greed.
Sudan as Evidence
From 1898 until its independence in 1956, Britain and Egypt retained control of the
northern region of Sudan while leaving the southern region to its own devices. Intending to
develop a Northern Sudanese state, the British focused almost exclusively on developing the
Northern region. Immediately prior to independence, the British decided to integrate the two
regions under a single government located in the North which was dominated by Arab
interests. With the largely non-Arab southern region excluded from the government and
political process as well as tangible economic resources, resentment surrounding the
perceived political and economic marginalization and discrimination of the non-Arab groups
would lead to rebel attacks on the government, which the southern region viewed as
illegitimate. Ethnic conflict between non-Arabs and Arabs would begin in 1955, before
independence, and would continue in some form until 2005 when a comprehensive peace
agreement was established between Sudan and what would later become South Sudan.
As a result of the second civil war which began in 1983, and the 2004 conflict in Darfur,
at least two million Sudanese have been killed and more than 400,000 have fled to other
countries. At one point more than four million Sudanese were displaced
1
; making the
Sudanese the largest displaced population in the entire world (Prunier & Gisselquist, 2003).
Consequently, in response to the ethno-religious civil war, ongoing territorial conflicts, and
the desire for autonomy, South Sudan became an independent state on July 9, 2011 after a
referendum that passed with nearly 99% of the Southern Sudanese electorate in favor of
secession from greater Sudan.
Despite the formation of an independent state, the Failed State Index (FSI) still
recognizes South Sudan and Sudan as a single entity
2
, whereby it remains number three on
the Failed State Index (2012). Further, the decades long conflict has left both states in a
condition where they have some of the worst health indicators in the world.
b) Even when ethnic/religious cleavages are not present, the main grievance based issue
of poverty can still lead to state failure, but only if democratic institutions are not in
place.
1
This figure includes internally displaced persons, not just refugees.
2
In the most recent publication of the FSI, they have begun to score the individual states, but South Sudan is not
included in the rank order; however, the scores remain consistent between the two states.
Tiffiany Howard and Brendan Morris
6
Zimbabwe as Evidence
In 1923, Zimbabwe, then known as Southern Rhodesia, was annexed by Great Britain
from the British South Africa Company. Almost immediately, the white British minority
began to consolidate power and by 1965 the ruling elite declared its independence from Great
Britain. For nearly fifteen years, Rhodesia would function as an independent state, although it
went unrecognized by the UN. From 1965, until an uprising in 1979 brought about the
political incorporation of the African majority, the marginalized groups of black Africans
were largely excluded from the military, police force, the government and civil service.
In response to the discriminatory practices towards the African majority, by 1979, the UN
imposed sanctions on the Rhodesian government, which coincided with a guerilla uprising by
the Zimbabwe African National Union (ZANU) and the Zimbabwe African People's Union
(ZAPU). This uprising would soon evolve into a liberation civil war which did not end until
December 1979, when the Rhodesian regime and the British government finally conceded
defeat with the construction of a new, democratic constitution, which included free elections.
As a result, Zimbabwe emerged as an internationally recognized independent state on April
18, 1980, with Robert Mugabe as the first Prime Minister and Canaan Banana as the
ceremonial President.
With the African majority, and a newly independent Zimbabwe, the future appeared
promising for the emerging democratic state. However, almost from its inception, Zimbabwe
experienced crippling failures. The chaotic land reforms implemented by the Mugabe regime
have largely been unsuccessful, leading to economic stagnation, violence, and have ultimately
crippled Zimbabwe‘s farming sector. Zimbabwe‘s economic decline was further exacerbated
by two major factors: 1) its involvement in the war in the Democratic Republic of the Congo
(1998-2002) and 2) the continued autocratic rule of Robert Mugabe. Thus, with fraudulent
elections, economic mismanagement, and festering political dissent, Zimbabwe‘s current
ranking at number five on the Failed State Index (2012) seems justified, and it will likely
remain a failed state for many years to come.
2) Why are some fragile/weak/failing states able to avoid failure?
a. Weak/fragile/failing states persist even in the face of ethno-religious
cleavages and the grievance based issue of poverty but don‘t fail because
there is a measure of stability created by the presence of liberal democratic
institutions
b. State Failure is highly unlikely when ethnic tensions and/or economic
inequalities are addressed (even if only marginally) through the presence of
democratic institutions.
Colombia as Evidence
Colombia‘s democracy emerged in the late nineteenth century, during a period which
Samuel Huntington refers to as the ‗First Wave of Democratization‘ (Hungtington, 1991;
Lorente, 2010). In spite of its democratic principles, Colombia‘s social conditions lagged and
the country experienced a wave of violence as evidenced by ―La Violencia‖ in the late 1940s
and throughout the 1950s. Yet, these institutional weaknesses did not seem to erode the
Pathways to State Failure: Greed or Grievance?
7
foundation of democracy upon which Colombia was built. Thus, towards the end of the
‗Second Wave‘ [of Democratization], during the late 1960s and into the early 1970s, three
Latin American countries were considered liberal democraciesColombia, Venezuela and
Costa Rica. However, by the 1980s the institutional weaknesses that plagued Colombia from
the onset began to take their toll and the political, economic and social situation in Colombia
declined, driving the state‘s political institutions increasingly towards an ‗illiberal‘ democracy
(Smith and Ziegler, 2008).
Yet, the regime survived the increasing socio-political turmoil and violence, and after
implementing a series of institutional reforms, Colombia adopted a new Constitution in 1991
which was supposed to usher in an open political system with widespread participation
(Lorente, 2010). However, by the mid-nineties, due to government corruption, a failure of the
rule of law under President Samper, and continued armed challenges by the FARC and AUC
insurgencies, Colombia experienced a gradual deterioration of democracy.
Although Colombia continues to experience economic growth, under Calderón‘s
leadership, the state remains a failing one with a ranking of fifty-two on the Failed State
Index (2012). This ranking is further evidenced by its continued struggles with the economic
marginalization of its indigenous population, human rights abuses, paramilitary threats,
guerilla violence, and drug trafficking. Nonetheless, Colombia‘s liberal democratic political
institutions, which are reflected in its strong and progressive constitutional framework and
separation of powers, has protected the state from succumbing to failure despite decades of
intermittent violence and poor socio-economic conditions.
3) What about states with neither ethnic/religious tensions nor relative poverty issues?
An examination of the 2012 Failed State Index (FSI) and the top fifty states that are
ranked as very high alert, high alert, and alert, which this study classifies as a failed state,
every single one of them report high rankings (six or higher out of ten) for at least two (but in
most cases all three) out of the following three social and economic indicators: 1) group
grievances, 2) uneven economic development, and 3) poverty and economic decline (Table
1). What this finding suggests is that according to the 2012 FSI indicators and rankings, every
failed state on their list struggles with some form of ethno-religious cleavages and/or they
face relative poverty issues (See Table 2).
Table 1. The Failed State Index Top Fifty Failed States- Ethnic/Religious Tensions
and Relative Poverty Scores
3
Country
Ranking
on FSI
Group
Grievance
Uneven Economic
Development
Poverty and
Economic Decline
Somalia
1
9.60
8.10
9.65
Congo (D. R.)
2
9.29
8.90
8.82
Sudan
3
10.00
8.81
7.35
Chad
4
9.10
8.60
8.34
Zimbabwe
5
8.70
8.90
8.88
Afghanistan
6
9.40
8.10
7.70
3
The scores are measured from 1-10, therefore, a six or higher represents a high score across the variables: 1)
Group Grievance, 2) Uneven Economic Development and 3) Poverty and Economic Decline
Tiffiany Howard and Brendan Morris
8
Table 1. (Continued)
Country
Ranking
on FSI
Group
Grievance
Uneven Economic
Development
Poverty and
Economic Decline
Haiti
7
7.00
8.63
9.54
Yemen
8
9.00
8.40
8.71
Iraq
9
9.71
8.70
7.73
Central African Republic
10
8.50
8.71
8.00
Cote d'Ivoire
11
9.00
7.70
7.40
Guinea
12
7.90
8.10
8.90
Pakistan
13
9.58
8.20
7.25
Nigeria
14
9.70
8.90
7.54
Guinea-Bissau
15
5.70
7.80
9.00
Kenya
16
8.90
8.20
7.30
Ethiopia
17
8.09
7.90
7.37
Burundi
18
8.00
7.90
8.77
Niger
18
7.70
7.60
8.60
Uganda
20
7.70
8.10
7.50
Myanmar
21
8.69
8.70
7.60
North Korea
22
6.60
8.60
9.30
Eritrea
23
6.40
6.90
8.60
Syria
23
9.20
7.50
6.28
Liberia
25
6.50
7.70
8.60
Cameroon
26
7.50
8.10
6.48
Nepal
27
9.02
8.40
7.60
Timor-Leste
28
6.80
7.00
7.98
Bangladesh
29
8.90
8.10
7.40
Sri Lanka
29
9.10
8.10
5.58
Egypt
31
8.80
7.40
7.10
Sierra Leone
31
6.20
8.20
8.30
Congo (Republic)
33
6.30
7.90
7.51
Iran
34
8.61
6.70
6.42
Rwanda
35
8.50
7.41
6.80
Malawi
36
5.70
7.70
8.50
Cambodia
37
7.27
7.11
6.90
Mauritania
38
7.50
6.35
7.60
Togo
39
5.10
7.60
7.70
Uzbekistan
39
7.70
7.90
7.10
Burkina Faso
41
5.20
8.20
7.70
Kyrgyzstan
41
8.39
7.30
7.90
Equatorial Guinea
43
6.60
8.80
4.80
Zambia
44
6.30
7.73
8.10
Lebanon
45
8.40
6.54
5.49
Tajikistan
46
6.91
6.50
7.70
Solomon Islands
47
6.80
8.30
7.90
Angola
48
6.50
9.06
4.80
Laos
48
6.33
5.81
6.70
Libya
50
7.00
7.00
5.50
Source: 2012 Failed State Index; Data Compiled by Author.
Pathways to State Failure: Greed or Grievance?
11
RESEARCH DESIGN
Data
The data used for this analysis come from four primary sources: The Failed State Index,
the State Fragility Index, the Polity IV data series, and the World Bank-World Development
Indicators. The Polity IV data are used to construct our measures of democracy; and we rely
upon the World Bank World Development Indicators data to provide our economic measures.
To construct our dependent variable, we rely upon the State Fragility Index. Last
published in 2010, the index includes a list of all the sovereign countries in the world with a
population greater than 500,000. The total number of observations is 164 countries, and we
measure state deterioration from 2005 until 2010. The State Fragility Index ranks and scores a
country according to the state‘s Effectiveness and Legitimacy across four dimensions:
Security, Political, Economic and Social (Marshall and Cole, 2011). Each of these indicators
is then ranked on a six point fragility scale, whereby a zero means a state does not exhibit
fragility, a one indicates a state exhibits low fragility, a two indicates a state exhibits
moderate fragility, a three indicates a state exhibits serious fragility, a four indicates a state
exhibits high fragility, and a five indicates a state exhibits extreme fragility.
Regarding he data used to construct our independent variables, the Failed State Index
(FSI) has published an annual index of states suffering from varying degrees of deterioration
since 2005. The FSI is well known for providing a thorough and comprehensive listing of
primary indicators of state failure, those on the brink of failure, weak states, and stable states.
The FSI identifies twelve key indicators which are divided into four broad categories: social,
economic, political and military which serve to provide detailed measures of a state‘s
effectiveness and legitimacy (See Table 3). Every state that is listed is ranked according to
how well or poorly a state performs across these twelve indicators. For example, out of 177
countries, the United States is ranked 159, while Somalia is ranked number 1, illustrating that
a higher ranking reflects a poor performance across the selected indicators.
METHODOLOGY
Outcome Variable
The State Fragility Index ranks the states on its list according to two scores: Effectiveness
and Legitimacy. These scores are then aggregated for a final ranking, whereby a score of
twenty-five represents the most extreme cases of state fragility and zero represents those
states that do not suffer from state fragility (Table 3)
Table 3. State Fragility Index Measurement System
5=EXTREME FRAGILITY (20-25 Rank)
2=MODERATE FRAGILITY (8-11 Rank)
4=HIGH FRAGILITY (16-19 Rank)
1=LOW FRAGILITY (4-7 Rank)
3=SERIOUS FRAGILITY (12-15 Rank)
0=LITTLE OR NO FRAGILITY (0-3 Rank)
Tiffiany Howard and Brendan Morris
12
For the purposes of this study, all states with a ranking above twelve and a corresponding
score of three and higher, are thus considered to be failed, and are coded as ―1‖. The
remaining states are coded as ―0‖. What this leaves us with is a dichotomous measure of state
fragility in the global system for the years of 2005-2010.
Predictor Variables
Grievance
The Failed State Index evaluates states across twelve indicators to determine a state‘s
ranking on the index. To arrive at the final ranking, every state is given a score for its
performance across each indicator. The performance indicators are measured from 0-10.
Thus, the closer a state is to ten, the more it suffers from the particular indicator, and
subsequently, the closer a state is to zero, the less likely it is affected by the selected indicator.
For the purposes of this analysis, we look specifically at the performance of these variables
individually, but also at the interaction between the FSI‘s indicators of 1) group grievances
and 2) poverty and economic decline as measures of social grievances within a state.
Therefore, the higher a state scores across the individual variables, and the interacted measure
of group grievances and poverty and economic decline, the greater the likelihood that it
suffers from these factors and is at risk for failure
4
.
The argument we make here is that the states which suffer from the grievance based
pressures of ethnic/religious tensions and relative poverty are more likely to failthe one
caveat to that argument being that states with liberal democratic institutions in place have
been able to avoid failure. To measure democracy, we utilize the POLITY IV data and
include their measurement of democracy (DEMOC), which is scaled from 0-10, whereby a
score of ―10‖ reflects a strong democracy and a score of ―0‖ is indicative of one that is weak
or in transition. For the purposes of this study, we recode the democracy variable to reflect
only moderate to strong democracies as measured by the Polity IV data series. Thus, all
scores between 0 and 5 are coded as ―0‖ and the remaining scale of ―6-10‖ is recoded as ―1-
5‖. This leaves us with a scaled measurement of moderate to strong democracies.
Greed
As for the measures of greed, we utilize the World Bank World Development Indicators
Data to construct our measures of predation and rent seeking. Similar to Collier and Hoeffler
(2004), Collier (2007, 2009), Hoeffler (2011), and Regan and Norton (2005), we include a
state‘s GDP, percentage of ore and medal exports relative to GDP (as a measure of primary
commodity exports), and natural resource rents as our measures of greed in the model. The
argument these authors make, which we seek to test in the context of state failure, is that
countries where there is competition over natural resource rents and primary commodity
predation are at greater risk of experiencing [state failure] (Hoeffler 2011).
4
See Table 1 for more details regarding these measures.
Pathways to State Failure: Greed or Grievance?
13
Table 4. Description of Variables
5
Variable
Measurement
Description
Hypothesis:
Greed vs.
Grievance
State Failure
0,1
Dependent Variable which
measures state effectiveness
and legitimacy
-------
Democracy
0-5
Measure of strong (liberal,
stable) democracies
Grievance
Group Grievances
0-10
Measures the state‘s ability to
provide security when tensions
and violence exists between
groups.
Grievance
Poverty and
Economic Decline
0-10
Measures the strain faced by
the state to provide for its
citizens
Grievance
GDP
Continuous
(0~)
Measures the wealth of a
country without consideration
for how wealth is distributed
Greed
Natural Resource
Rents as a
Percentage of GDP
0-100%
Percentage of national income
from natural resources
Greed
Primary
Commodity
Exports (Ore and
Metals)
0-100%
Percentage of national income
from the primary commodity
exports of Ore and Metals
Greed
Logistical Regression Model
Figure 1.Likelihood of State Failure Given Social Grievances and Potential for Greed.
Hypothesis 1a. States fail because of ethnic/religious tensions, when coupled with the
main grievance based issue of relative poverty.
Figure 2. Likelihood of State Failure Given Social Grievance of Poverty Alone and the Potential for
Greed.
5
See Appendix for Descriptive Statistics
eents esource_R Natural_R
ExportsCommodityPrimaryGDPPovertyGrievanceGroup
failurep1 failurep
ln1Model
i
i
4
3210 ___
)( )(
eents esource_R Natural_R
ExportsCommodityPrimaryGDPPoverty
failurep1 failurep
lnModel
i
i
4
3210 __
)( )(
2
Tiffiany Howard and Brendan Morris
14
Hypothesis 1b. Even when ethnic/religious cleavages are not present, the main grievance
based issue of poverty can still lead to state failure, but only if democratic institutions are not
in place.
Figure 3. Likelihood of State Failure Given Social Grievances and the Potential for Greed Controlling
for the Presence of Liberal Democratic Institutions.
Hypothesis 2. Weak states persist even in the face of ethno-religious cleavages and the
grievance based issue of poverty but don‟t fail because there is a measure of stability created
by the presence of democratic institutions.
FINDINGS
Turning now to the statistical results, in Table 5, we report the binary logit estimates
6
for
the model, which indicates the likelihood of state failure given the potential for greed or the
presence of grievance based issues discussed in the literature.
Table 5. Binary Logit Estimates of Likelihood of State Failure
Variable
Model 1-Greed
vs. Grievance
Model 2-Greed vs.
The Grievance Issue
of Poverty Alone
Model 3-Greed vs.
Grievance with the
Inclusion of Democracy
Group Grievances * Poverty
.212***
(.033)
----
.127**
(.048)
Poverty
----
1.19***
(.356)
----
GDP
-1.15e-11***
(3.63e-12)
-1.59e-11**
(7.02e-12)
-2.34e-12
(3.44e-12)
Primary Commodity
Exports
-.007
(.009)
-.012
(.012)
-.030
(.044)
Natural Resource
.089**
(.035)
.082**
(.036)
.130**
(.069)
Democracy
----
----
-1.91**
(.840)
Constant
-11.06***
(1.55)
-11.66***
(2.41)
6.77
(7.13)
Observations
606
606
359
Log Likelihood
-124.84
-127.57
-64.31
LR
2
218.30
247.22
75.10
Prob >
2
.000
.000
.000
Note: ***p < .01 for two tailed test; ** p < .05 for two tailed test; *p <0.10 for two tailed test; standard
errors in parentheses.
6
Stata command is xtlogit given panel dataset
eDemocracyents esource_R Natural_R
ExportsCommodityPrimaryGDPPovertyGrievanceGroup
failurep1 failurep
lnModel
i
i
54
3210 ___
)( )(
3
Pathways to State Failure: Greed or Grievance?
15
The findings in Table 6 represent the crux of this analysis by establishing that social
grievances are a salient contributor to state failure types of events. The implication of these
findings is that greed alone, or the opportunity for predation, cannot fully explain why states
fail.
DISCUSSION OF RESULTS
Taken as a whole, the results of the three models estimated in this study reveals support
for our hypothesis that social grievances, such as ethnic and religious tensions and relative
poverty play a role in the failure of the state. In every model, group grievances and poverty
are statistically and substantively significant. The findings provide strong support for our
greed versus grievance argument in that social grievances matter when it comes to the
breakdown of the state. Further, there is evidence to support the assertion that while the social
grievances of ethnic and religious tensions and relative poverty are critical to state failure,
many weak states continue to languish in this intermediate phase, because of the presence of
democratic institutions which would suggest that democracy is also important to this
discussion. The statistical results provide evidence that strong democracies in many ways
protects a state from failure, which is consistent with our belief that democracy alone cannot
prevent state failure, but rather it is the presence of liberal democratic institutions, which are
indicative of stable democracies with a long tradition of democracy, that help insulate a state
from failure. Thus, the results provide evidential support for the assertion that grievances do
matter when it comes to state failure. And yet, at the same time, we cannot dismiss the
importance of the opportunity for greed. The findings of the models reveal support for the
greed argument as well. In two out of three of the models, declining GDP is an important
predictor of state failure. Similarly, a state‘s high dependence upon natural resources also is
an important predictor of state failure. The three models provide consistent support for the
variable, Natural Resource Rents. What the models do not support is the variable, Primary
Commodity Exports. At no point was this variable statistically significant, but that is not to
say primary commodity exports are not important to this discussion. Quite the opposite.
Collier finds that a high reliance upon primary commodity exports, whereby 26% or more of
the GDP are derived from these goods, contributes to civil war. We acknowledge the
importance this factor has to the discussion of civil war and simply point out that in terms of
state failure, there is no evidence to suggest that a state‘s heavy reliance upon primary
commodity exports positions it for failure. Further, there are a number of primary commodity
exports one could examineiron and steel, agricultural products, fuel and mining products,
as well as oil. We looked specifically at ore and minerals due to the availability of data for
our time series. Consequently, examined collectively, as Collier did in his analysis, a heavy
reliance upon primary commodity exports could position a state for failure, but at this time
our analysis does not support this assertion.
Tiffiany Howard and Brendan Morris
16
CONCLUSION
The rise of state failure as a major security concern has shifted the international security
paradigm away from the traditional security threats of strong and aggressive states to a focus
on weak and collapsing states that cannot control their borders or function properly. Failing
states present a new pattern of threats within the international system, including the rise of
dangerous and unaccountable non-state actors, such as organized crime and terrorist groups;
humanitarian crises that can create instability within and between states; and interstate
conflict that can spread and destabilize entire regions.
With more than one hundred states in the world that are classified as weak or failing, the
threat of widespread state collapse has the potential to create security threats beyond the
scope the international community has yet to witness (Chesterman et al., 2005; European
Security Strategy, 2003; U.S. National Security Strategy, 2002). Thus, understanding the root
causes of state fragility is an important avenue of research that deserves a strong empirical
analysis, as a better understanding of these factors could potentially lead to the development
of sustainable preventive measures.
This analysis has taken a classic argument within the political science and economic
literature and explored its relevance to the human security concern of state failure. The utility
of such a study is that it allows one to isolate discrete factors and categorize them into the
simplified terms of greed versus grievance. In other words, with regards to state fragility and
state decline, what is to blamesocial grievance or the opportunity for greed? This study has
found that it is both, but more importantly it has also provided evidence that the presence of
strong democratic institutions in many ways protects a fragile state from failure despite the
presence of ethnic and religious grievances, relative poverty, even an economy that is heavily
dependent upon natural resources. It would seem that strong democratic institutions play a
mitigating role in creating stability. Obviously, this work provides support for the
democratization literature, but that is unintended. Our main goal was to take up the greed
versus grievance debate as a cause of civil war and apply it to state failure in an effort to
determine if it is greed or grievance which leads to state decline, or neither. What we have
found is that we cannot rule out one for the otherboth the opportunity for greed and the
presence of social grievances function as contributing factors to the failure of the state.
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APPENDIX
Table 6. Descriptive Statistics
Variable
Observations
Mean
Standard Deviation
Minimum
Maximum
State Failure
803
.400
.490
0
1
Democracy
429
8.53
1.33
6
10
Group Grievances
1190
6.05
1.91
1
10
Poverty and Economic
Decline
1190
5.79
1.92
1
10
GDP
976
2.37e+11
1.03e+12
2.15e+08
1.17e+13
Natural Resource Rents
as a Percentage of GDP
822
12.49
20.94
0
206.51
Primary Commodity
Exports (Ore and
Metals)
662
21.34
15.58
0
201.0
International Journal of Terrorism and Political Hot Spots ISSN: 1932-7889
Volume 9, Number 1 © Nova Science Publishers, Inc.
COUNTERING VIOLENT EXTREMISM
IN THE UNITED STATES*
Jerome P. Bjelopera
SUMMARY
In August 2011, the Obama Administration announced its counter-radicalization
strategy. It is devised to address the forces that influence some people living in the United
States to acquire and hold radical or extremist beliefs that may eventually compel them to
commit terrorism. This is the first such strategy for the federal government, which calls
this effort ―combating violent extremism‖ (CVE). Since the Al Qaeda attacks of
September 11, 2001, the U.S. government has prosecuted hundreds of individuals on
terrorism charges. Unlike the necessarily secretive law enforcement and intelligence
efforts driving these investigations, the CVE strategy includes sizeable government
activity within the open marketplace of ideas, where private citizens are free to weigh
competing ideologies and engage in constitutionally protected speech and expression.
Some of the key challenges in the implementation of the CVE strategy likely spring from
the interplay between the marketplace of ideas and the secretive realm encompassing law
enforcement investigations and terrorist plotting.
The strategy addresses the radicalization of all types of potential terrorists in the
United States but focuses on those inspired by Al Qaeda. To further elaborate this
strategy, in December 2011 the Administration released its ―Strategic Implementation
Plan for Empowering Local Partners to Prevent Violent Extremism in the United States‖
(SIP). The SIP is a large-scale planning document with three major objectives and
numerous future activities and efforts. The SIP‘s three objectives involve (1) enhancing
federal community engagement efforts related to CVE, (2) developing greater
government and law enforcement expertise for preventing violent extremism, and (3)
countering violent extremist propaganda.
This report provides examples of Administration CVE activity and examines some of
the risks and challenges evident in the SIP‘s three objectives. The report also diagrams
and briefly discusses the ―future activities and efforts‖ outlined in the SIP for each of
these three objectives. A number of areas may call for oversight from Congress. These
include the following:
* This is an edited, reformatted and augmented version of a Congressional Research Service publication, No.
R42553, dated February 19, 2014.
Jerome P. Bjelopera
22
Picking Partners and Establishing “Rules of the Road”
Much of the federal government‘s CVE effort centers on engagement with Muslim
American community groups. This may not be as easy as simply reaching out to local
organizations. Who speaks for diverse Muslim communities in America? What criteria will
the Administration employ in its selection efforts, and how open will the process be? Once
approved as partners, what ―rules of the road‖ will govern continued cooperation? Ad hoc and
opaque decision making might render the whole CVE outreach process arbitrary to some
community participants. Congress may opt to consider whether there is a need to require the
Administration to release public guidelines in this area.
Intervention with at-Risk Individuals
There appears to be little federally driven guidance to community groups on how to
intervene with people vulnerable to radicalization. Congress may desire to require the
Administration to examine the utility and feasibility of developing a CVE intervention
modelpossibly akin to gang intervention modelsfor the United States.
Identifying Programs to Assist Grassroots CVE Efforts
Working with communities entails informing them of possible resources they can use. A
publicly available, comprehensive list of grant programs that can be harnessed for CVE
activities does not exist. Congress may be interested in asking the Administration to formalize
a roster or designate a clearinghouse available to local entities to identify such programs. By
possibly pursuing this, Congress may help to ensure that local constituents have better
information about and more direct access to federal CVE programs. On the other hand, such a
list could be perceived as an additional layer of bureaucracy between constituents and grant
programs.
Countering Extremist Ideas: Choosing Good vs. Bad
The task of countering extremist ideas highlighted in the CVE strategy and SIP raises a
number of questions. Do the strategy and the SIP place the federal government in the business
of determining which ideologies are dangerous and which are safeessentially determining
which beliefs are good and which are bad? In order to conduct effective oversight, Congress
may choose to ask the Administration to define exactly what it means when referring to
―violent extremist narratives.‖
Countering Violent Extremism in the United States
23
The Lack of a Lead Agency
There is no single agency managing all of the individual activities and efforts of the plan.
At the national level, some may argue that it would be of value to have a single federal
agency in charge of the government‘s CVE efforts. From their perspective, without a lead
agency it may be difficult to monitor the levels of federal funding devoted to CVE efforts and
how many personnel are devoted to CVE in the federal government. For how many of these
employees is counter-radicalization a full-time job? Are there mechanisms to track federal
CVE expenditure? Which federal body is responsible for this? Congress may wish to pursue
with the Administration the feasibility or value of designating a lead agency, or the possibility
of naming a lead via legislation.
However, it is unclear what types of authorityespecially in the budgetary realm such
a lead may be able to wield over well-established agencies playing central roles in the CVE
strategy.
Transparency
Without a high degree of transparency, an engagement strategy driven by federal
agencies charged with intelligence gathering and law enforcement responsibilities may run
the risk of being perceived as an effort to co-opt communities into the security process
providing tips, leads, sources, and informants. Some may maintain that this threatens to
―securitize‖ a relationship intended as outreach within the marketplace of ideas. As such,
critics may argue that it might not be particularly effective to have the same federal agencies
responsible for classified counterterrorism investigations grounded in secrecy also be the
main players in the CVE strategy.
However, the Department of Homeland Security, the Department of Justice, and the
Federal Bureau of Investigation have responsibilities for much of the CVE program. Because
of this reality, Congress may opt to consider whether there is a need for greater transparency
from the Administration in its CVE efforts.
INTRODUCTION: COUNTERTERRORISM CONTEXT
In August 2011, the Obama Administration released its domestic counter-radicalization
strategy. The Administration dubbed this effort ―countering violent extremism‖ (CVE).1
Implementation of the CVE strategy revolves around impeding the radicalization of violent
jihadists in the United States.2
As this may suggest, for this report, a couple of concepts are key. Namely,
―radicalization‖ describes the process of acquiring and holding radical or extremist beliefs;
and ―terrorism‖ describes violent or illegal action taken on the basis of these radical or
extremist beliefs.
This report examines the implementation of the Administration‟s counter-radicalization
strategy and provides possible policy considerations for Congress relating to this relatively
new area of coordinated federal activity. Implementation of the CVE strategy involves many
Jerome P. Bjelopera
24
elements within the executive branch and brushes against a number of key issues involving
constitutionally protected activity versus effective counterterrorism policing efforts.
Government-related efforts to stave off terrorist activity in the United States exist within
two broad contexts. First, the operational aspects of violent terrorist plots largely involve
clandestine illegal activity. Since the terrorist attacks of September 11, 2001 (9/11), hundreds
of individuals have been implicated in more than 70 homegrown violent jihadist plots or
attacks.3 In this secretive realm, law enforcement pursues terrorists in a real-world version of
hide-and-seek.
Domestic law enforcement strategies devised in the decade since 9/11 to prevent
terrorism largely focus their efforts in this area.4 Federal law enforcement activity in this
arena is geared toward rooting out terrorists and stopping them from successfully executing
their plots.
The second context is the open marketplace of ideas. Here, private citizens are free to
weigh competing ideologies and engage in constitutionally protected speech and expression.
In this arena, a relative few ordinary law-abiding persons move from the mainstream and
adopt radical ideologies that embrace terrorism. As they radicalize, they do not necessarily
commit crimes. Much like the policing that occurs in the secretive realm, the federal
government‘s CVE strategy is a preventative approach to terrorism, but it is not wholly
focused on policing. Rather, federal activity in this arena is geared toward helping local
communities and individuals boost their resilience to terrorist radicalization efforts.
The divergent nature of these two contexts may imply clear distinction between the
marketplace of ideas and the secretive operational realm. In reality, they are far from distinct.
What happens operationally has significant impacts in the marketplace of ideas (Figure 1).
This interrelationship is highlighted by any number of issues. For example,
the success of terrorist plots in the secretive realm may spur radicalization and
generate public fear in the marketplace of ideas;
conversely, successful investigations in the secretive realm may discourage
radicalizing individuals within the marketplace of ideas from eventually embracing
violent acts of terrorism as an ultimate goal;
effective policing within the secretive realm may depend on a trusting community
acting supportively in the marketplace of ideas;
perceived policing excesses in the secretive realm may impede community
engagement with law enforcement; and
high levels of radicalization occurring in the marketplace of ideas may expand the
potential pool of terrorist recruits, while an effective government strategy to counter
radicalization may staunch terrorist recruitment.
In fact, some of the key challenges involved in implementing a national strategy to deal
with terrorist radicalization spring from the interplay between the marketplace of ideas and
the secretive realm.
Countering Violent Extremism in the United States
25
Source: CRS.
Figure 1. Counterterrorism Context.
From Radicalization to Terrorism
A key way to fight the threat of homegrown terrorists is to develop an understanding of
how radicalization works and formulate ways to prevent radicalization from morphing into
terrorist plotting. In 2007, the New York City Police Department‘s (NYPD‘s) Intelligence
Division released a study of domestic jihadist radicalization that has been widely circulated
within the law enforcement community.
The NYPD study describes a general four-step process of radicalization leading to
terrorist plotting. First, individuals exist in a pre-radicalization phase in which they lead lives
unaware of or uninterested in either violent jihad or fundamentalist Salafi Islam. Next, they
go through self-identification in which some sort of crisis or trigger (job loss, social
alienation, death of a family member, international conflict) urges them to explore Salafism.
Third, individuals undergo indoctrination or adoption of jihadist ideals combined with Salafi
views. The study indicates that, typically, a ―spiritual sanctioner‖ or charismatic figure plays a
central role in the indoctrination process. Finally, radicalizing individuals go through
―jihadization,‖ where they identify themselves as violent jihadists, and are drawn into the
planning of a terrorist attack.5 At this point, according to the NYPD, they can be considered
violent extremists (terrorists). The Federal Bureau of Investigation‘s (FBI‘s) own four-stage
model of radicalization closely follows that of the NYPD.6
This model and the process it describesthough usefulshould, however, be read with
caution, according to some observers. The radicalization process is best depicted in broad
brush strokes. Brian Michael Jenkins has suggested that
There is no easily identifiable terrorist-prone personality, no single path to
radicalization and terrorism. Many people may share the same views, and only a handful
of the radicals will go further to become terrorists. The transition from radical to terrorist
is often a matter of happenstance. It depends on whom one meets and probably on when
that meeting occurs in the arc of one‘s life.7
Jerome P. Bjelopera
26
Some experts have warned against viewing the radicalization process as a ―conveyer
belt,‖ somehow starting with grievances and inevitably ending in violence.8 The NYPD report
itself acknowledges that individuals who begin this process do not necessarily pass through
all the stages nor do they necessarily follow all the steps in order, and not all individuals or
groups who begin this progression become terrorists.9 Studies by the Department of
Homeland Security‘s (DHS‘s) Office of Intelligence and Analysis indicate that the
radicalization dynamic varies across ideological and ethno-religious spectrums, different
geographic regions, and socioeconomic conditions. Moreover, there are many diverse
―pathways‖ to radicalization and individuals and groups can radicalize or ―de-radicalize‖
because of a variety of factors.10
In a more fundamental conceptualization, radicalization expert Peter Neumann has noted
that three core elements exist in the radicalization process. These are grievance,
ideology/narrative, and mobilization.11 Grievances can stem from narrow issues unique to an
individual‘s personal life or arise from broader perceptions of the surrounding world. A
radicalizing individual seizes upon extremist ideologies or narratives to help explain his or
her grievance. Mobilization consists of an individual acting on his or her grievances based on
precepts culled from a particular ideology or narrative. These actions can involve
criminality.12
COUNTERING RADICALIZATION IN THE UNITED STATES
Because so much of the radicalization process occurs within the marketplace of ideas,
counter-radicalization efforts involve activity in the same realm. American counter-
radicalization approaches favor government engagement with communities affected by
terrorism. Scholars who have studied the circumstances that are associated with voluntary
cooperation by Muslim-Americans in anti-terror policing efforts have identified strong
evidence that when authorities are viewed as more legitimate, their rules and decisions are
more likely to be accepted.13 Community engagement isin partan effort to make law
enforcement authority more accepted within localities.
Administration Strategy and Current Activities
The Administration‘s CVE strategy revolves around countering the radicalization of all
types of potential terrorists. As such, the radicalization of violent jihadists falls under its
purview and is the key focus. The initial August 2011 strategy was supported by the
Administration‘s release in December 2011 of its ―Strategic Implementation Plan for
Empowering Local Partners to Prevent Violent Extremism in the United States‖ (SIP).14 The
SIP is a large-scale planning document with three major objectives and numerous future
activities and efforts. There is no single lead agency for any of the three objectives. Likewise,
there is no single agency managing all of the individual future activities and efforts of the
plan. The SIP‘s three objectives or ―core areas of activity‖ are ―(1) enhancing engagement
with and support to local communities that may be targeted by violent extremists; (2) building
Countering Violent Extremism in the United States
27
government and law enforcement expertise for preventing violent extremism; and (3)
countering violent extremist propaganda while promoting our [U.S.] ideals.‖15
The following sections provide examples of Administration CVE activity and discussion
of the risks and challenges evident in the SIP‟s three core areas of activity. The “future
activities and efforts” outlined for each of the three core areas of activity in the SIP are also
diagramed and briefly discussed below.
Community Engagement
The concept of building trust through engagement and partnership is rooted in the
community policing model developed by law enforcement professionals in the 1990s, and
community policing is mentioned in the Administration‘s CVE strategy.16 Following the 9/11
attacks, law enforcement agencies came to realize the prevention of terrorist attacks would
require the cooperation and assistance of American Muslim, Arab, and Sikh communities.
―Embedded within these communities,‖ notes Professor Deborah Ramirez, ―are the linguistic
skills, information, and cultural insights necessary to assist law enforcement in its efforts to
identify suspicious behavior. In order to have access to these critical tools and information,
law enforcement recognized the need to build bridges required for effective communication
with these groups.‖17 At the same time, Muslim, Arab, and Sikh Americans recognized the
need to define themselves as distinctly American communities who, like all Americans, desire
to help prevent another terrorist attack.18
A study by the Homeland Security Institute found that ―[c]ommunity policing has been
applied with notable success in places such as New York City, Chicago, Boston, and San
Diego, and has been widely adopted (at least in name) throughout the United States.‖19 A
Homeland Security Advisory Council (HSAC) working group20 chaired by Maryland
Governor Martin O‘Malley commented on Community-Oriented Policing, stating that
Effective public-private partnerships, designed to enable civic engagement, problem-
solving, and violent crime mitigation provide the foundation for efforts to prevent, protect
against and respond to violent criminal activityincluding that which may be motivated
by ideological objectives.21
The Administration‘s CVE strategy depends on federal agencies cooperating with local
groups to expand engagement efforts and to foster preventative programming ―to build
resilience against violent extremist radicalization.‖22 In fact, it highlights a ―community-based
approach‖ for the federal government, and much of the activity it describes will take place in
the ―marketplace of ideas‖ described in Figure 1. To this end, the federal government most
effectively acts as a ―facilitator, convener, and source of information.‖23 Since November
2010, a national task force led by DOJ and DHS has helped coordinate CVE-related
community engagement from the national perspective. It works with U.S. Attorneys, DHS‘s
Office for Civil Rights and Civil Liberties (CRCL), the Department of State, and DOJ, among
others.24
Role of U.S. Attorneys
Under the Administration‘s CVE strategy, U.S. Attorneys play a key role in community
engagement within their jurisdictions.25 U.S. Attorneys are ―the nation‘s principal litigators
under the direction of the Attorney General.‖26 Attorney General Eric Holder has pushed the
Jerome P. Bjelopera
28
U.S. Attorneys to enhance their outreach efforts to Muslim, Sikh, and Arab American
communities.27 Within their districts across the country, U.S. Attorneys have met with
Muslim communities regarding specific situations and trends.28 In December 2010, DOJ
began a pilot program involving U.S. Attorneys in community outreach efforts. This program
did not specifically focus on CVE efforts but has included radicalization-related outreach.29
For example, in September 2011, the U.S. Attorney for the District of Oregon and Attorney
General Holder met with Arab and Muslim community representatives in Portland, OR.30
Comparable outreach has been pursued by other U.S. Attorneys. The District of
Minnesota has established the Young Somali-American Advisory Council. This responded to
al-Shabaab‘s31 recruitment of young men within the greater Minneapolis-St. Paul, MN,
Somali community.32 The council includes more than a dozen people between the ages of 18
and 30. Among the outreach activities tied to the council, the U.S. Attorney‘s office instructed
council members on civics issues. In a similar vein, the U.S. Attorney for the Southern
District of Florida and Assistant Attorney General Thomas E. Perez met with Muslim and
Arab leaders in Miami in February 2011.33 Likewise, in November 2010, an alleged jihadist
terrorist plotter was arrested for purportedly attempting to bomb a Christmas tree lighting
ceremony in Portland, OR. In the plot‘s wake, the state‘s U.S. Attorney repeatedly met with
local Muslim leaders.34
Other Federal Activities
Aside from the special role given to U.S. Attorneys, other elements of DOJ and
additional U.S. government agencies engage and partner with Muslim American
communities. Some of these efforts by DHS, DOJ, and FBI are detailed below.
Department of Homeland Security
DHS has stated that public outreach to local communities plays a major role in the
department‘s mission.35 Engagement activities are centered in the Office for Civil Rights and
Civil Liberties (CRCL), which began its outreach in 2003.36 Its work involves
counterterrorism and CVE-related matters, but its overall mission is broader. The office is
also responsible for37
advising DHS leadership, personnel, and partners about civil rights and civil liberties
issues;
communicating with individuals and communities whose civil rights and civil
liberties may be affected by DHS activities, informing them about policies and
avenues of redress, and promoting appropriate attention within DHS to their
experiences and concerns; and
investigating and resolving civil rights and civil liberties complaints filed by the
public.
CRCL has a Community Engagement Section. Recent domestic CVE-related38 outreach
events have been coordinated by CRCL and its Community Engagement Section.39
Department of Justice
In addition to the CVE role played by U.S. Attorneys, DOJ‘s engagement activities
largely appear to come from the Civil Rights Division and the Community Relations
Countering Violent Extremism in the United States
29
Service.40 According to its website, since the terrorist attacks of September 11, 2001 (9/11),
the Civil Rights Division of DOJ has prioritized prosecution of bias crimes and discrimination
against Muslims, Sikhs, and persons of Arab and South-Asian descent, as well as individuals
perceived to be members of these groups. These types of incidents are commonly referred to
as ―backlash.‖ The division has also educated people in these communities about their rights
and available government services.41 Senior Civil Rights Division officials have met with
Muslim, Sikh, Arab, and South Asian community leaders regarding backlash discrimination
issues. Like the Civil Rights Division, DOJ‘s Community Relations Service is involved in
outreach. Since 9/11, the service has held meetings around the country to address backlash-
related issues.42
Federal Bureau of Investigation
The FBI has publicly suggested that since 9/11, it has been formulating an ―extensive
program‖ to bolster its relationship with Arab, Muslim, Sikh, and South Asian communities
in the United States.43 In March 2010, the Chief of the Community Relations Unit of the
FBI‘s Office of Public Affairs testified to Congress that the primary purpose of the agency‘s
outreach program was ―to enhance public trust and confidence in the FBI.‖44 This involves
fostering a positive image of law enforcement among U.S. organizations that have
condemned terrorism and violent radicalization. The FBI relies on programs at the field office
level to foster interaction with a wide variety of local groups.45 Also, some FBI field offices
have formally interacted with local Muslim communities regarding specific cases.46 At the
national level, FBI headquarters representatives have engaged in liaison with Arab and
Muslim American advocacy groups and have regular issue-focused conference calls with
community leaders.47 The FBI is also a member of the Incident Coordination
Communications Team managed by DHS CRCL.
Risks and Challenges
Although there is considerable support among public officials for community
engagement, some experts warn of significant challenges in the development of programs that
foster substantive relationships rather than token discussions or community relations events.
A study of policing in Arab American communities sponsored by the National Institute of
Justice, for example, highlighted four key obstacles hindering outreach between U.S. Arabs
(Christian and Muslim) and law enforcement: ―Distrust between Arab communities and law
enforcement, lack of cultural awareness among law enforcement officers, language barriers,
and concerns about immigration status and fears of deportation.‖48
Terrorism expert Marc Sageman cautions that engagement can be a sign of government
focus on Muslim communities when instead it should be stressed that Muslims are Americans
just like everyone else.49 He sees another challenge arise when engagement on the
government side is led by federal agencies with law enforcement and intelligence
responsibilities. ―It can send the message that we are only interested in Muslims because they
are potential law breakers. No other foreign or religious communities in the United States get
this type of scrutiny.‖50
Outreach may be most effective when U.S. Muslim communities initiate it and
community-government contact revolves around countering the extremist messages popular
among violent jihadists.51 Marc Sageman also suggests it would be more appropriate for local
Jerome P. Bjelopera
30
authorities, such as a mayor‘s office, to perform the engagement role because they know these
communities better than federal officials.
The Tension between Enforcement and Engagement Activities
An inherent challenge to building trust and partnership involves law enforcement
investigative activities and tactics that can be perceived to unfairly target law-abiding citizens
or infringe on speech, religion, assembly, or due process rights. This challenge highlights how
government counterterrorism work in the secretive operational realm depicted in Figure 1 can
influence engagement conducted in the open marketplace of ideas. If a community views
government counterterrorism investigative activity as overly aggressive, it may not willingly
cooperate in engagement programs. One expert has noted that ―counter-radicalization is not
about intelligence-gathering nor is it primarily about policing.‖52 The HSAC Countering
Violent Extremism Working Group found that
There can be tension between those involved in law enforcement investigations and
those collaborating to establish local partnerships to stop violent crime. Community
policing can be impeded if other enforcement tactics are perceived as conflicting with
community partnership efforts.53
This challenge is evident in some public discussions of law enforcement surveillance
activities and efforts to recruit and manage informants. Revelations that the NYPD engaged in
surveillance of mosques, Muslim businesses, and Muslim college students in New Jersey and
elsewhere in 2006 and 2007 have prompted concern among a number of community groups
and civil libertarians.54 The FBI‘s top official in New Jersey suggested that such activities
undermined the bureau‘s efforts at community engagement.55 While New York City Mayor
Michael Bloomberg and others defended the legality of such activities, some New Jersey
officials have complained that the NYPD had not effectively coordinated efforts with them.56
Other former law enforcement officials in New Jersey believed that appropriate cooperation
occurred.57 Also, as announced in May 2012, a fact-finding review conducted by New
Jersey‘s Office of the Attorney General ―revealed no evidence ... that NYPD‘s activities in
the state violated New Jersey civil or criminal laws.‖58
In pursuing a community engagement strategy, the use of informants can be a
controversial issue, especially when law enforcement officials rely on informants with
criminal records who may be working on behalf of authorities in exchange for reduced jail
time. One Muslim community leader who has published widely on domestic terrorism states
that ―many Muslim Americans fear that paid FBI informants specifically target
impressionable youth and that law enforcement agents coerce community members to
become informants themselves to avoid complications with immigration procedures.‖59
Confidential informants have been used in post-9/11 violent jihadist cases occurring in the
United States. In some of those cases, the informants had criminal histories. The use of
informants poses the following risks:
Informants do not merely observe and collect data. They make things happen....
Informants can cause confusion and dissatisfaction among members of groups and
communities they infiltrate, discrediting leaders, and fostering factionalism as people
wonder if any of their colleagues are spies. Their handlers‘ structure of incentives—
raises, promotions, transfers, financial rewards, waived jail timecreates a system where
Countering Violent Extremism in the United States
31
informants consciously or subconsciously create and then destroy terrorist threats that
would not otherwise exist. These pressures can push them from passive observer to
aggressive actor, with serious consequences for constitutionally protected free speech.
Another unplanned result: government loses legitimacy and support in the eyes of
targeted communities, if they feel they have been manipulated.60
Acknowledging the challenge, then FBI Director Robert Mueller said in 2009,
―Oftentimes, the communities from which we need the most help are those who trust us the
least. But it is in these communities that we ... must redouble our efforts.‖61 Also in 2009,
then-FBI spokesman John Miller said the agency values its relationships with Muslims and
has worked hard on outreach efforts that range from town hall meetings to diversity training
for FBI agents.62 Miller said there is no factual basis for claims the FBI infiltrates mosques or
conducts blanket surveillance of Muslim leaders. ―Based on information of a threat of
violence or a crime, we investigate individuals, and those investigations may take us to the
places those individuals go.‖63
Former FBI agents and federal prosecutors note that informants are ―still one of the
government‘s best weapons to thwart terrorists and that the benefit to national security is
likely to far outweigh any embarrassment to the agency.‖ They claim that ―although the law
places almost no constraints on the use of informants, the agency takes sending an informant
into a mosque very seriously and imposes a higher threshold for such requests.‖64 Former FBI
counterterrorism Chief Robert Blitzer states that ―what matters to the FBI is preventing a
massive attack that might be planned by some people ... using the mosque or church as a
shield because they believe they‘re safe there. That is what the American people want the FBI
to do. They don‘t want some type of attack happening on U.S. soil because the FBI didn't act
on information.‖65
Maher Hathout from the Muslim Public Affairs Council counters by saying that ―people
cannot be suspects and partners at the same time. Unless the FBI‘s style changes, the
partnership with the Muslim community will not be fruitful.‖66 The HSAC‘s CVE Working
Group also cautions that ―Law enforcement should be sensitive to the fact that perceptions
regarding enforcement actions and intelligence gathering can impact community-oriented
policing goals.‖67 In considering the tradeoff between security and liberty, policy makers face
a choice in those cases where an investigative tactic might inflame members of a particular
community: Is the impact of that tactic counterproductive in the long run, or is it necessary,
short-term collateral damage?
U.S. Attorneys as Brokers
As mentioned elsewhere in this report, DOJ has pushed the U.S. Attorneys to become
larger players in community outreach. This suggests a critical question: is it appropriate to
have the nation‘s principal litigators be key players in the federal government‘s CVE outreach
efforts? Can the same people responsible for prosecuting terrorism cases effectively broker
trust among community members who may be wary of federal law enforcement? Maintaining
the integrity of this dualistic U.S. Attorney rolechief terrorism litigators v. federal outreach
coordinatorsmay be challenging in the implementation of the strategy.
Jerome P. Bjelopera
32
Legitimacy and Litmus Tests
Given their role in federal CVE engagement, U.S. Attorneys have to selectively
cooperate with groups at the local level. Identifying specific groups for outreach may be
challenging. There is little consensus among American Muslims regarding national advocacy
groups: ―many Muslims do not feel there is a national Muslim-American organization that
represents them. When asked which of a list of national Muslim-American organizations
represents their interests, 55% of Muslim men and 42% of Muslim women say that none
do.‖68
The U.S. government can affect the legitimacy of community actors simply by choosing
them as outreach partners. It is unclear how U.S. Attorneys will select the groups with which
they will work. To this end, will the U.S. government establish litmus tests regarding federal
interaction with community groups? What role will law enforcement considerations
potentially choosing only groups that have cooperated with FBI investigations by offering
leads or providing informants, for exampleplay in the selection of community partners?
Will federal investigators scour the backgrounds of groups prior to engaging with them?
When selecting engagement partners, DOJ has made at least one very public choice that
was driven by law enforcement or prosecutorial considerations. The FBI and DOJ have
limited their ties to the Council on American-Islamic Relations (CAIR), because DOJ listed
the group as an unindicted co-conspirator in a federal terrorism case.69 This is an example of
the dynamics described in Figure 1the secretive (operational) realm driving community
engagement activity in the marketplace of ideas. In November 2008, the Holy Land
Foundation for Relief and Development and five of its leaders were convicted of providing
material support to Hamas, a designated foreign terrorist organization.70 CAIR has opposed
its listing as an unindicted coconspirator. The listing is not a formal criminal charge, and
subsequent terrorism charges have not been brought against CAIR.71 In spite of all of this,
CAIR, a well-known Muslim advocacy group, maintains working relationships with local law
enforcement officials.72
Fusion Centers and Community EngagementPotentially Alleviating Tensions
The CVE strategy mentions the role of the national network of fusion centers73 in
alleviating tension between the government‘s investigative and engagement activities. Fusion
centers play a part in reporting suspicious, terrorism-related activity nationwide, perhaps
potentially causing some tension between communities and law enforcement.74 The strategy
and the SIP mention the Building Communities of Trust Initiative (BCOT) as a project
fostering relationships among three sets of actorsfusion centers, law enforcement, and the
communities in which they operate.75 This type of outreach potentially informs local
communities about how suspicious activity suggestive of terrorism is reported to law
enforcement and how police protect civil rights and liberties as they look for such activity.76
The initiative‘s recommendations included items such as
training of fusion center analysts in cultural sensitivity so that they can distinguish
behavior that is constitutionally protected from criminal or terrorist activity;
encouraging law enforcement to ―embrace‖ community policing by ―emphasizing
partnerships and problem solving‖; and
encouraging communities to view information sharing with fusion centers and law
enforcement as key to crime prevention and counterterrorism.77
Countering Violent Extremism in the United States
33
Building Government and Law Enforcement Expertise
The SIP emphasizes three key items in this area. First, the plan notes that the U.S.
government has to improve its understanding of radicalization via research, analysis, and
partnerships. Second, greater sharing of information among state, local, and federal agencies
regarding terrorist recruitment and radicalization is necessary.78 Third, the SIP notes that the
federal government has to improve the radicalization-related training offered to federal, state,
and local agencies.
Paramount among the federal government‘s efforts to improve its understanding of CVE
are efforts to study the radicalization process and identify radicalizing individuals. To this
end, the National Institute of Justice included research on domestic radicalization in its list of
funding opportunities.79 The Science and Technology Directorate (S&T) within DHS has also
pursued the topic.80 To help identify radicalizing individuals, DHS, the FBI, and the National
Counterterrorism Center (NCTC) produced a study of homegrown terrorists, which reportedly
teased out warning signs of radicalization. The study was discussed by senior federal, state,
and local law enforcement officials at the White House in January 2012.81 Along these same
lines, in July 2011, NCTC released findings resulting from an interagency study of
homegrown terrorists. This study was not made public officially, but a summary of its
findings is available online. It describes four ―mobilizing patterns‖ among extremists. These
include ―links to known extremists, ideological commitment to extremism, international
travel, and pursuit of weapons and associated training.‖82 It also emphasized an approach to
understanding and assessing radicalization via analysis of behavioral indicators.83
The SIP also calls for enhanced information sharing between federal, state, and local law
enforcement. Prior to late 2011, these efforts largely revolved around disseminating
information to and briefing state and local officials. Such activity included the development
of case studies examining the experiences of known and suspected terrorists.84 This was
recommended in 2010 by the HSAC.85 In February 2011 congressional testimony, then DHS
Secretary Janet Napolitano remarked that DHS develops these unclassified case studies so
that state and local law enforcement, state and local governments, and community
members can understand the warning signs that could indicate a developing terrorist
attack. These case studies focus on common behaviors and indicators regarding violent
extremism to increase overall situational awareness and provide law enforcement with
information on tactics, techniques, and plans of international and domestic terrorists.86
Napolitano went on to note that DHS conducted what she dubbed ―deep dive sessions‖
regarding CVE issues with local police intelligence expertsproviding them with
information they could pass to subordinates.87
Additionally, the SIP notes that the federal government will enhance the radicalization-
related training offered to federal, state, and local agencies. It argues that this is necessary
because of ―a small number of instances of federally sponsored or funded CVE-related and
counterterrorism training that used offensive and inaccurate information.‖88 In March 2011,
news reports and a study suggested that state and local law enforcement officials were
receiving poor counterterrorism training from unqualified instructors, often from the private
sector.89 Furthermore, news reports indicated that offensive material produced by an FBI
employee was delivered in a variety of official training sessions up until August 2011.90
These revelations led to concerns from public officials and advocacy groups regarding
Jerome P. Bjelopera
34
training standards used by the bureau.91 In addition, reportedly biased material had seeped
into the training made available to Joint Terrorism Task Force92 officers via a secure
computer network.93
In the midst of these revelations, in September 2011 the bureau announced a review
of all training and reference materials that relate in any way to religion or culture.
Additionally, the FBI will consult with outside experts on the development and use of
training materials to best ensure the highest level of quality for new agent training,
continuing education for all employees, and any FBI-affiliated training. All training will
be consistent with FBI core values, the highest professional standards, and adherence to
the Constitution.94
DOJ announced a similar review in September 2011 as well.95 Less than 1% of the
material inspected was found to be inaccurate or inappropriate.96 In October 2011, the White
House ordered a broader examination of CVE instructional efforts within the federal
government.97 In the same month, DHS released guidance and best practices for CVE
training. These highlighted five commonsense goals:
1) Trainers and training should be expert and well-regarded.
2) Training should be sensitive to constitutional values.
3) Training should facilitate further dialog and learning.
4) Training should adhere to government standards and efforts.
5) Training and objectives should be appropriately tailored, focused, and supported.98
The same document notes that CVE education programs differ from strictly
counterterrorism training (the latter presumably centered on topics such as terrorist threats,
vulnerabilities, and trends in terrorism). CVE training focuses ―on developing trust,
enhancing community resiliency, prevention, intervention, and protecting civil rights and civil
liberties.‖99 In March 2012, DOJ and FBI released their own sets of training principles that
parallel DHS‘s goals.100
Risks and Challenges
Development of better training and improved information sharing are laudable law
enforcement goals. However, because such efforts feature so prominently in the second SIP
objective, its overall thrust may be perceived to be more about classic preventative policing
than about countering radicalization at the grass-roots level. It is unclear how much of the
activity described under this objective directly fits into the Administration‘s emphasis on ―a
community based‖ CVE approach.101
There is space in the CVE strategy for training law enforcement about constitutionally
protected aspects of the radicalization processin other words, efforts to train police to
understand when suspects go from being law-abiding radicals to being terrorists. However,
the SIP itself does not offer any formal means for federal, state, or local law enforcement to
cope with radicalizing individuals outside of their traditional areas of expertise
investigation, arrest, and prosecution. The SIP does not outline mechanisms for law
enforcement to refer radicalizing individuals for community intervention (whatever that might
mean within a local context). Without such a process, police can become very adept at
Countering Violent Extremism in the United States
35
identifying radicalization and yet be only able to cope with a radicalized individual when he
or she mobilizes and becomes a terrorism suspect. One of the risks implicit in this SIP
objective is that it may sharpen police ability to investigate terrorists, without improving their
ability to intervene with radicalizing individuals.
If the SIP‟s efforts to improve law enforcement training mostly enhance the ability of
police to detain suspects and provide no other means for coping with radicalization, then
these elements of the strategy might be better described as counterterrorism in nature, not
part of the nation‟s counter-radicalization strategy.
The Issue of Openness
Should the federal government be concerned about the over-classification of
radicalization-related research and training material by the security agencies involved in its
development? The SIP‘s second objective is an area in which a great deal of activity can
occur behind closed doors (within the secretive realm described in Figure 1), especially if the
objective largely involves security, intelligence, and law enforcement agencies that typically
avoid public disclosure of much of their other work. However, the steps involved in the
radicalization process involve largely constitutionally-protected activity that occurs in the
public sphere. Excessive secretiveness regarding government efforts to understand the legally
protected activities of Americans might actually fuel radicalization. For example, one study
by a British think tank has suggested that conspiracy theories ―are a reaction to the lack of
transparency and openness in many of our [U.K.] institutions.‖ This same study sees
conspiracies as a ―radicalizing multiplier.‖102 Could this be possible in the United States?
A project developed as part of the second SIP objective was not widely released. The
study of radicalization among homegrown violent extremists performed by DHS, NCTC, and
the FBI mentioned abovewas revealed to state and local law enforcement behind closed
doors at the White House.103 This example poses the question: can the federal government
build trust within local communities if it holds back from the general public its own study of
how people in the United States radicalized and became terrorists? Will secretiveness in this
area actually feed radical narratives?
Additionally, will excessively secret government efforts to understand radicalization
shake community trust in law enforcement? Federal attempts to develop classified theories
about legally-protected activities may make community groups less willing to ―share‖
information regarding those very activitiesespecially if that information is treated strictly
as intelligence by the government and the results of such “sharing” are never seen.
Transparency in this arena potentially opens government conceptualizations of radicalization
and federal training materials to the scrutiny of outside experts. It is unclear what sway
partnerships with non-government experts will have in the SIP‘s second objective.
Talking about Ideology
Ideology is a key ingredient in the radicalization experience. It is unclear how the CVE
Training Guidance issued by DHS accommodates discussion of ideology within an
instructional environment. In fact, under one of its goals: ―Training should be sensitive to
constitutional values,‖ the guidance indicates that ―Training should focus on behavior, not
appearance or membership in particular ethnic or religious communities,‖ yet it is silent
regarding radical ideologies. Should instructors focus on ideology? How should instructors
discuss radical beliefs in the classroom?
Jerome P. Bjelopera
36
Countering Violent Extremist Propaganda
The SIP notes that countering violent extremist propaganda is ―the most challenging area
of work, requiring careful consideration of a number of legal issues, especially those related
to the First Amendment.‖104 In this area the document highlights NCTC‘s efforts to develop a
―Community Awareness Briefing.‖ In 2010, NCTC‘s Director described the briefing in
testimony to the Senate Homeland Security and Governmental Affairs Committee:
It has become clear that government can play a significant role by acting as a
convener and facilitator that informs and supportsbut does not directcommunity-led
initiatives. Based on this, NCTC led the development of a Community Awareness
Briefing that conveys unclassified information about the realities of terrorist recruitment
in the Homeland and on the Internet. The briefing, which can be used by departments and
agencies and has garnered very positive reactions, aims to educate and empower parents
and community leaders to combat violent extremist narratives and recruitment.105
NCTC has also connected community activists with technology experts in a seminar to
―maximize the use of technology to counter violent extremism online‖ and the Department of
State has developed exchanges between foreign CVE experts and U.S. communities.106 The
SIP did not indicate any additional ―current activity‖ in late 2011 to counter violent extremist
propaganda other than working to inform the media, policy makers, and U.S. communities on
the issue. It did mention the development of a separate approach for the digital
environment.107 This was released in February 2013. In an online posting titled ―Working to
Counter Online Radicalization to Violence in the United States,‖ the White House
emphasized the creation of a new Interagency Working Group to Counter Online
Radicalization to Violence. It is
chaired by the National Security Staff at the White House and involving specialists
in countering violent extremism, Internet safety experts, and civil liberties and privacy
practitioners from across the United States Government. This Working Group will be
responsible for developing plans to implement an Internet safety approach to address
online violent extremism, coordinating the Federal Government‘s activities and assessing
our progress against these plans, and identifying additional activities to pursue for
countering online radicalization to violence.108
The White House has charged the group with using existing federal programs to ―raise
awareness and disseminate tools for staying safe from online violent extremism.‖109
Risks and Challenges
The SIP notes that government efforts to counter narratives that foster radicalization
should affirm American unity and bolster community capacities to ―contest violent extremist
ideas.‖ The document stresses the importance of First Amendment concerns in this area.110
Aside from First Amendment issues, a challenge in this area might revolve around the
perceived legitimacy of the main agencies the Administration selects for its implementation
efforts. If security agencies trawling the internet for potential suspects lead the charge in
fostering a counter-narrative, will American Muslims see these efforts as legitimate?111 How
willing will they be to partner with FBI, DOJ, NCTC, and DHS to further this SIP goal?
Jerome P. Bjelopera
40
Administration Plan and Future Activities
The SIP lists ―future activities and efforts‖ under its three objectives. Figure 2, Figure 3,
and Figure 4 each cover a single SIP objective. They depict the lead federal agencies
responsible for the future activities and efforts subsumed by the relevant objective, and more
than one agency can serve as a lead for a particular effort. For the sake of clarity, the figures
do not depict partner agencies playing secondary roles and assisting the lead agencies in
particular activities. The language used for each of the future activities and efforts in the three
figures extensively paraphrases or directly quotes the language used in the SIP. Additionally,
the three figures do not include all of the component agencies of specific executive
departments. Only the component agencies responsible for future activities and efforts under
each SIP objective are included.
Is DHS the De Facto U.S. CVE Lead Agency?
It appears that DHS is cited as a lead agency in 43 of the 62 future activities and efforts
discussed in the SIP.112 Because it is a key player and decision maker in more than two-thirds
of the SIP‘s impending plans, it seems that DHS may be the de facto lead agency in charge of
U.S. CVE activity in the near future. This suggests a critical issue: while granted a large
amount of responsibility for implementation of the CVE strategy, will DHS have a matching
level of say in its further evolution?
Possible Policy Considerations for Congress
―The United States has made great strides,‖ says one federal counterterrorism official, ―in
what might be called tactical counterterrorismtaking individual terrorists off the streets, and
disrupting cells and their operations ... an effective counterterrorism strategy must go beyond
this ... (to address) the threat of violent extremism.‖113 With the announcement of the CVE
strategy, the Obama Administration has begun to address this concern. These Administration
efforts may attract greater oversight from Congress, especially because the strategy involves
the interplay between the public marketplace of ideas involving constitutionally protected
activity and the secretive operational realm where terrorists plot and law enforcement
pursues.
Implementing the CVE Strategy
As mentioned elsewhere in this report, federal CVE activity emphasizes engagement with
Muslim communities across the country. It broadly recognizes this, training, and counter
messaging as key components of CVE. However, aside from embracing robust outreach and
training for government agencies, the strategy lacks specific initiatives to combat
radicalization at the grass-roots level. This suggests a number of other issues.
Picking Partners and Establishing “Rules of the Road”
Who speaks for diverse Muslim communities in America? As mentioned above, ―[w]hen
asked which of a list of national Muslim-American organizations represents their interests,
55% of Muslim men and 42% of Muslim women say that none do.‖114 Perhaps sentiments are
clearer at the local level, however these figures suggest the difficulty of selecting partners
Countering Violent Extremism in the United States
41
who accurately represent community needs. It is difficult to speak of one Muslim
―constituency‖ in the United States. The 2.75 million Muslims in the United States have
divergent sectarian points of view, come from many ethnic or national backgrounds, and live
in a variety of areas. Muslim Americans support many secular and religious organizations.115
What criteria will the Administration employ in its selection efforts, and how transparent
will the process be? Once approved as partners, what ―rules of the road‖ will govern
continued cooperation? In essence, what would have to happen for a Muslim community
group to fall out of favor with the government? Ad hoc decision making might cause the
whole CVE outreach process to appear arbitrary to some community participants. Congress
may consider requiring the Administration to release public guidelines in this area. Public
guidelines may be especially important, because engagement directly involves engaging
people and issues in the open marketplace of ideas and protected constitutional activity.
Intervention with At-Risk Individuals
There appears to be little federally driven guidance to community groups on how to
intervene with people vulnerable to radicalization.116 Such an intervention effort, the Channel
Program, has been a key element of the United Kingdom‘s counter radicalization strategy
since 2007. The British government describes Channel as a ―multi-agency programme to
identify and provide support to people at risk of radicalisation‖ and involvement in ―all forms
of terrorism.‖117 Channel ―relies on close collaboration between police, partners and other key
stakeholders ... and where necessary, provides an appropriate support package tailored to an
individual‘s needs.‖118 Copying the Channel program in its entirety may not be appropriate
for the U.S. context. However, it is unclear whether the Obama Administration considers
some variant of Channel workable or even necessary in the United States.
The U.S. CVE strategy does cite the Office of Juvenile Justice and Delinquency
Prevention (OJJDP) Comprehensive Gang Model as an example of ―locally-based initiatives
that connect communities and government to address community challenges through
collaboration and the development of stakeholder networks.‖119 OJJDPa component of
DOJ‘s Office of Justice Programs—describes the model as ―one of the few approaches to
gangs that encompasses a multidisciplinary response to gangs on multiple levels.‖120 The
preventative model is intended as a blueprint for organizing local counter-gang efforts that do
not necessarily result in law enforcement-driven outcomes, such as investigations, arrests, and
prosecutions. For intervention, it targets young adult and teen gang members, not entities
such as hate groups, prison gangs, or ideologically driven gangs consisting of adults.121 The
model involves five strategies:
Community Mobilization: Involvement of local citizens, including former gang
members and community groups and agencies, and the coordination of programs and
staff functions within and across agencies.
Opportunities Provision: The development of a variety of specific education,
training, and employment programs targeting gang-involved youth.
Social Intervention: Youth-serving agencies, schools, street outreach workers,
grassroots groups, faith-based organizations, law enforcement agencies, and other
criminal justice organizations reaching out and acting as links between gang-involved
youth and their families, the conventional world, and needed services.
Jerome P. Bjelopera
42
Suppression: Formal and informal social control procedures, including close
supervision or monitoring of gang youth by agencies of the criminal justice system and
also by community-based agencies, schools, and grassroots groups.
Organizational Change and Development: Development and implementation of
policies and procedures that result in the most effective use of available and potential
resources to better address the gang problem.122
The model is designed to focus on youth active in gangs or those who exhibit factors
indicating potential gang involvement. It also advocates engagement with the families of such
youth. Among its many suggestions, the model discusses interventions such as job training,
employment, family counseling, academic tutoring, and anger management classes for young
people at-risk. It also calls on law enforcement agencies and courts to move beyond
traditional roles in the suppression of gangsurging them to consider more intervention-
oriented activities such as referring youth to social service programs.123
The CVE strategy provides little detail about how the Comprehensive Gang Model may
be applied to keep vulnerable people from radicalizing and becoming terrorists. Congress
may consider examining the utility and feasibility of developing a CVE intervention model
for the United States. While elaborating the specific details of such a program may be best
left to the federal agencies potentially involved, broadly and publicly exploring what shape it
would take might be of value to Congress. Key questions may involve issues such as (1)
which agencies would take the lead in creating a program based on the Comprehensive Gang
Model? (2) how would the FBI have to adapt its counterterrorism missionstrictly focused
on investigating and disrupting terrorist activity—to handle the notion of ―social intervention‖
as suggested by the Comprehensive Gang Model?
Identifying Programs and Federal Contacts to Assist Grassroots CVE Efforts
The Administration‘s CVE strategy stresses that ―the best defenses against violent
extremist ideologies are well-informed and equipped families, local communities, and local
institutions.‖124 Determining and explaining how local entitieswhether public or private
should interact with federal partners may pose quite a challenge. For example, are there
existing federal grant programs that can be harnessed by local actors to develop a CVE
intervention program? A publicly available comprehensive list of grant programs that can be
harnessed for CVE activities does not exist. Congress may opt to consider the feasibility or
the value of such a list or a clearinghouse available to local entities to identify such programs.
By possibly pursuing this, Congress may help to ensure that local constituents have better
information about and more direct access to federal CVE programs. On the other hand, such a
list may be perceived as an additional layer of bureaucracy between constituents and grant
programs.
Countering Extremist Ideas: Choosing Good vs. Bad
As the United Kingdom has clearly stated in its counter-radicalization program, extremist
ideologies play a role in radicalization.125 Furthermore, Quintan Wiktorowicz (at the time on
the National Security Council) commented that ―we [the United States] will push back against
the full scope of different violent ideologies with an inclusive, positive narrative.‖126
However, in the United States, mere belief in radical notions, no matter how reprehensible
they are, is not necessarily illegal. The American Civil Liberties Union‘s (ACLU‘s) Michael
German has stated that the ACLU is ―deeply concerned about the potential for government
Countering Violent Extremism in the United States
43
censorship of Internet content based on the [CVE] strategy‘s proposal for countering violent
extremist propaganda.‖127
Even more fundamentally, the task of countering extremist ideas raises key issues
regarding the implementation of the CVE strategy. In the SIP, the Administration notes that
when countering violent extremist propaganda, ―In many instances, it will be more effective
to empower communities to develop credible alternatives that challenge violent extremist
narratives rather than having the federal government attempt to do so.‖128 This begs the
question: do the strategy and the SIP place the federal government in the business of
determining which ideologies are dangerous and which are safeessentially determining
which beliefs are good and which are bad? This can be viewed from two angles. One involves
establishing parameters for engagement with local communities, the other involves evaluating
the end product of engagement, the counter-narrative.
First, while the SIP may suggest that the government should not be involved in
creating alternatives to violent extremist propaganda, it appears to assume that the
government will be involved in sifting between dangerous and safe ideas
establishing parameters for engagement on this issue. Without picking and choosing
between good and bad ideologies, ―empowering‖ local activists to counter specific
concepts may prove difficult. Empowering individuals and groups to counter un-
named, un-described concepts may prove challenging.
Second, if the framing of a counter-narrative challenging terrorist ideologies is
necessary, how precisely should the federal government partner with state and local
government and civilian counterparts in the development of this counter-narrative?
How do government entities keep a counter-narrative from being publicly viewed as
propaganda or fueling terrorist conspiracy theories about the United States?
Oversight in this area may be vital. As a start, Congress may wish to ask the
Administration to better define what it means when referring to ―violent extremist narratives.‖
The Lack of a Lead Agency
There is no designated single lead agency for any of the three objectives laid out in the
SIP. Likewise, there is no single agency managing all of the individual activities and efforts
of the plan. At the national level, it arguably may be of value to have a single federal agency
in charge of the government‘s CVE efforts. One expert has stated as much:
The White House should designate a single agency that serves as the principal hub
for collecting, disseminating, and evaluating information on counter-radicalization. Its
main function would be to collect, analyze, and share best practices with a wide range of
governmental and non-governmental actors, including community leaders and non-
profits.129
Without a lead agency it may be difficult to monitor the levels of federal funding devoted
to CVE efforts. How many personnel are devoted to CVE in the federal government? For how
many of these employees is counter radicalization a full-time job? Are there mechanisms to
track federal CVE expenditure? Which federal body is responsible for this? Very specifically,
the lack of a lead agency is reflected in the fact that DOJ, DHS, and FBI have each issued
Jerome P. Bjelopera
44
training guidelines for CVE. They are very similar, but the issuance of three almost identical
but separate guidelines raises the question: why not just have one set created by one body
overseeing the CVE program? Congress may pursue with the Administration the feasibility or
value of designating a lead agency, or the possibility of naming a lead via legislation.
However, it is unclear what types of authorityespecially in the budgetary realmsuch a
lead may be able to wield over well-established agencies playing central roles in the CVE
strategy.
Measuring Input and Results
On the other side of these budgetary questions, without a lead agency, how will the
Administration evaluate the effectiveness of federal CVE efforts? The SIP underscores that
individual departments and agencies involved in CVE ―will be responsible for assessing their
specific activities in pursuit of SIP objectives, in coordination with an Assessment Working
Group.‖130 While this may seem straight-forward, the British government has struggled with
measurement issues related to its counter-radicalization strategy. U.K. officials have made
―progress ... in measuring outputs but not always in measuring outcomes.‖131 In other words,
counting the number of engagement events is one thing. It is quite another thing to evaluate
their impact. The SIP mentions this problem as well.132 However, the SIP does not discuss (1)
specific metrics, (2) what real authority the Assessment Working Group will have to
independently evaluate and impact CVE activity within federal departments and agencies, and
(3) whether the Assessment Working Group will have the power to standardize measures of
success across federal agencies and departments. In the end, the lack of a lead agency with
budgetary control over CVE efforts and clear responsibility for implementation of the strategy
makes it difficult to conceptualize exactly how spending in this area will be prioritized,
evaluated, and then re-prioritized based on results.
Secretiveness vs. Transparency
Without a high degree of transparency, an engagement strategy driven by federal
agencies charged with intelligence gathering and law enforcement responsibilities may run
the risk of being perceived as an effort to co-opt communities into the security process
providing tips, leads, sources, and informants. This threatens to ―securitize‖ a relationship
intended as outreach within the marketplace of ideas. It has been noted that ―unlike
counterterrorism, which targets terrorists, counter-radicalization is focused on the
communities that are targeted by terrorists for recruitment. The aim is to protect, strengthen,
and empower these communities so that they become resilient to violent extremism.‖133 As
such, some suggest that it might not be particularly effective to have the same federal
agencies responsible for counterterrorism also be the main players in the CVE strategy.134 The
SIP rejects this notion stressing that ―traditional national security or law enforcement agencies
such as DHS, DOJ, and the FBI will execute many of the programs and activities outlined in
the SIP.‖135 The strategy relies on agencies whose enforcement and intelligence missions are
undergirded by secretiveness. As it stands, 19 of the 20 ―future activities and efforts‖ for SIP
objective 1, which focuses on community engagement, have DOJ, DHS, or a national task
force headed by DOJ and DHS as lead agencies. The lone remaining future activity/effort is
headed by the Department of Treasury and is focused on terrorism financing, an area of
enforcement for the department.
Countering Violent Extremism in the United States
45
The fact that DOJ, DHS, and Treasury are key counterterrorism agencies may make it
difficult for community groups to view them as full partners, especially if community
confidence in them is shaky to start. According to a 2011 study, American Muslims have less
confidence than other faith groups in the FBI—―60% of Muslim Americans saying they have
confidence in the FBI, versus 75% or more of Americans of other faiths who say this.‖136
Because of this reality, Congress may decide to assess whether there is a need for greater
transparency from the Administration in its CVE efforts.
End Notes
1 Empowering Local Partners to Prevent Violent Extremism in the United States, August 2011, p. 1. Hereinafter:
Empowering Local Partners.
2 The Obama Administration recognized the significance of the homegrown jihadist threat in its June 2011 National
Strategy for Counterterrorism. This strategy document focuses on Al Qaeda, its affiliates (groups aligned with
it), and its adherents (individuals linked to or inspired by the terrorist group). John Brennan, President
Obama‘s top counterterrorism advisor, publicly described the strategy as the first one, ―that designates the
homeland as a primary area of emphasis in our counterterrorism efforts.‖ See White House, National Strategy
for Counterterrorism, June 2011; Mathieu Rabechault, ―U.S. Refocuses on Home-Grown Terror Threat,‖ AFP,
June 29, 2011; Karen DeYoung, ―Brennan: Counterterrorism Strategy Focused on al-Qaeda‘s Threat to
Homeland,‖ Washington Post, June 29, 2011.
3 See CRS Report R41416, American Jihadist Terrorism: Combating a Complex Threat, by Jerome P. Bjelopera.
For lists of individuals involved in terrorism cases see http://homegrown.newamerica.net/table; ―Profiles in
Terror,‖ http://motherjones.com/fbi-terrorist. For this CRS report, ―homegrown‖ describes terrorist activity or
plots perpetrated within the United States or abroad by American citizens, legal permanent residents, or
visitors radicalized largely within the United States. ―Jihadist‖ describes radicalized Muslims using Islam as an
ideological and/or religious justification for belief in the establishment of a global caliphatea jurisdiction
governed by a Muslim civil and religious leader known as a caliphvia violent means. Jihadists largely
adhere to a variant of Salafi Islamthe fundamentalist belief that society should be governed by Islamic law
based on the Quran and follow the model of the immediate followers and companions of the Prophet
Muhammad. For more on Al Qaeda‘s global network, see CRS Report R41070, Al Qaeda and Affiliates:
Historical Perspective, Global Presence, and Implications for U.S. Policy, coordinated by John W. Rollins.
4 For more information on federal counterterrorism law enforcement, see CRS Report R41780, The Federal Bureau
of Investigation and Terrorism Investigations, by Jerome P. Bjelopera.
5 Mitchell D. Silber and Arvin Bhatt, Radicalization in the West: The Homegrown Threat, City of New York Police
Department, Intelligence Division, New York, 2007, pp. 6-8, http://sethgodin.typepad.com/seths_blog/files/
NYPD_Report-Radicalization_in_the_West.pdf. Hereinafter: Silber and Bhatt, Radicalization in the West.
6 Carol Dyer, Ryan E. McCoy, Joel Rodriguez, et al., ―Countering Violent Islamic Extremism: A Community
Responsibility,‖ FBI Law Enforcement Bulletin, December 2007, p. 6.
7 Brian Michael Jenkins, Would Be Warriors: Incidents of Jihadist Terrorist Radicalization in the United States
Since September 11, 2001 (Santa Monica, CA: The RAND Corporation, 2010), p. 7.
8 Sophia Moskalenko and Clark McCauley, ―Measuring Political Mobilization: The Distinction Between Activism
and Radicalism,‖ Terrorism and Political Violence, vol. 21, no. 2 (April 2009), pp. 239-240.
9 Silber and Bhatt, Radicalization in the West, pp. 10, 19.
10 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Written Testimony of
Charles E. Allen, Assistant Secretary of Intelligence and Analysis and Chief Intelligence Officer, Department
of Homeland Security, ―Threat of Islamic Radicalization to the Homeland,‖ 110th Cong., 1st sess., March 14,
2007, p. 5.
11 Ryan Hunter and Danielle Heinke, ―Radicalization of Islamist Terrorists in the Western World,‖ FBI Law
Enforcement Bulletin, (September 2011), pp. 27-29. Hunter and Heinke rely on the ideas of scholar Peter
Neumann.
12 Ibid.
13 Tom R. Tyler, Stephen Schulhofer, and Aziz Huq, ―Legitimacy and Deterrence Effects in Counter-Terrorism
Policing,‖ New York University School of Law, Public Law Research Paper No. 10-15, February 23, 2010, p.
Jerome P. Bjelopera
46
2, http://lsr.nellco.org/cgi/viewcontent.cgi?article=1182&context=nyu_plltwp. See also: David H. Schanzer,
The Way Forward on Combating al-Qa‘ida-Inspired Violent Extremism in the United States: Suggestions for
the Next Administration, A joint publication from the Institute for Social Policy and Understanding, the Duke
Islamic Studies Center, ISLAMiCommentary, and the Triangle Center on Terrorism and Homeland Security,
October 2012, pp. 6-8.
14 Strategic Implementation Plan for Empowering Local Partners to Prevent Violent Extremism in the United States,
December 2011. Hereinafter: Strategic Implementation Plan.
15 Ibid., p. 2.
16 Ibid., pp. 3, 6. The Justice Department has defined community policing as ―a philosophy that promotes
organizational strategies, which support the systematic use of partnerships and problem-solving techniques, to
proactively address the immediate conditions that give rise to public safety issues such as crime, social
disorder, and fear of crime.‖ One of its key features is the establishment of collaborative partnerships between
law enforcement agencies and individuals and organizations they serve to develop solutions to problems and
increase trust in police. See DOJ Office of Community Oriented Policing Services, Community Policing
Defined. April 3, 2009, p. 3.
17 Deborah A. Ramirez, Sasha Cohen O‘Connell, and Rabia Zafar, The Partnering for Prevention and Community
Safety Initiative, A Promising Practices Guide Executive Summary, 2004, p. 2.
18 Ibid.
19 Rosemary Lark (Task Lead), Richard Rowe, and John Markey, Community Policing within Muslim
Communities: An Overview and Annotated Bibliography of Open-Source Literature, Homeland Security
Institute, December 27, 2006, p. iii. The study describes the Homeland Security Institute as ―a federally funded
research and development center established by the Secretary of Homeland Security under Section 312 of the
Homeland Security Act of 2002.‖ This study, prepared for the DHS Science and Technology Directorate,
sought to identify the literature that examined community policing initiatives underway within Muslim
Communities in the U.S., and the extent to which they were successful in achieving the objectives of (1)
inclusiveness, promoting integration, and potentially minimizing the disaffection that can lead to
radicalization, particularly among Muslim youth; (2) serving as early warning to identifying incipient
radicalization or terrorist activities; and (3) opening a new channel of communication with individuals who
can navigate the linguistic and cultural complexities of Islam, providing needed context to inform intelligence
analysis.
20 HSAC provides advice and recommendations to the Secretary of Homeland Security. The chair of the council is
Judge William Webster, former Director of the CIA and Director of the FBI. Other members include leaders
from state and local government, first responder communities, the private sector, and academia. The
Countering Violent Extremism Working Group originated from a tasking by Secretary Napolitano to the
HSAC in February 2010 to work with state and local law enforcement and relevant community groups to
develop and provide recommendations on how DHS can better support community-based efforts to combat
violent extremism domestically. See Homeland Security Advisory Council, Countering Violent Extremism
Working Group, Spring 2010, p. 2. Hereinafter: HSAC CVE Working Group, Spring 2010.
21 HSAC CVE Working Group, Spring 2010, p. 5.
22 Strategic Implementation Plan, p. 10.
23 Empowering Local Partners, p. 3.
24 Strategic Implementation Plan, p. 9
25 Ibid., p. 8.
26 DOJ, ―United States Attorneys‘ Mission Statement,‖ http://www.justice.gov/usao/about/mission.html.
27 DOJ, ―Arab and Muslim Engagement: U.S. Attorneys‘ Outreach Efforts,‖ http://www.justice.gov/usao/
briefing_room/crt/engagement.html. Hereinafter: DOJ, ―Arab and Muslim.‖
28 DOJ, Ten Years Later: The Justice Department After 9/11, Partnering with the Muslim, Arab, and Sikh
Communities. Hereinafter: DOJ, Ten Years Later.
29 Strategic Implementation Plan, p. 8.
30 DOJ, ―Attorney General Holder Meets with Muslim Leaders in Portland,‖ September 30, 2011,
http://blogs.usdoj.gov/blog/archives/1617?print=1. Hereinafter: DOJ, ―Attorney General Holder Meets.‖
31 A terrorist group in Somalia.
32 B. Todd Jones, U.S. Attorney for the District of Minnesota, ―Arab and Muslim Engagement: Countering Violent
Extremism through Community-Based Approaches,‖ http://www.justice.gov/usao/mn/oped.html; Laura Yuen,
―Years After Somali Men Left Minn., Youth Decry Extremism,‖ Minnesota Public Radio, November 8, 2011,
http://minnesota.publicradio.org/display/web/2011/11/08/young-minnesota-somalis-decry-extremism/.
Countering Violent Extremism in the United States
47
33 DOJ, ―Arab and Muslim.‖
34 Peter Neumann, Preventing Violent Radicalization in America, Bipartisan Policy Center, (June 2011), p. 37
http://www.bipartisanpolicy.org/sites/default/files/NSPG.pdf. Hereinafter: Neumann, Preventing Violent
Radicalization.
35 CRCL, ―Engagement with Key Communities Team,‖ August 14, 2009. Hereinafter: CRCL Engagement Team,
August 14, 2009.
36 CRCL, Newsletter, vol. 2, no. 1 (September 2011), http://www.aila.org/content/default.aspx?docid=36956.
Hereinafter: CRCL, Newsletter, September 2011.
37 The mission of the DHS Officer for Civil Rights and Civil Liberties is outlined in 6 U.S.C. 345,
http://www.dhs.gov/ xabout/structure/editorial_0481.shtm. See DHS, Office of Civil Rights and Civil
Liberties, http://www.dhs.gov/officecivil-rights-and-civil-liberties.
38 Much like CRCL, the Section‘s mission involves more than CVE. It reaches out to other communities whose
issues are not necessarily tied to radicalization.
39 CRCL, Fiscal Year 2010 Annual and Consolidated Quarterly Reports to Congress, September 20, 2011, pp. 14-
15; CRCL Engagement Team, August 14, 2009. DHS also provides law enforcement training related to CVE
in the United States. With DOJ, DHS has instructed more than 46,000 ―front line officers‖ on suspicious
activity reporting. As of September 2011, CRCL taught over 2,000 law enforcement officials in the area of
CVE. CRCL CVE training highlights topics such as understanding violent radicalization, cultural awareness,
and community engagement. The training was developed ―in response to concerns from attendees at
community roundtables.‖ See DHS, Fact Sheet, ―The Department of Homeland Security‘s Approach to
Countering Violent Extremism.‖ Hereinafter: DHS, Fact Sheet. See also: CRCL, Newsletter, vol. 1, no. 8
(June 2011).
40 DOJ, ―Attorney General Holder Meets.‖
41 Civil Rights Division, ―Initiative to Combat Post-9/11 Discriminatory Backlash,‖ http://www.justice.gov/crt/
legalinfo/discrimupdate.php. Hereinafter: Civil Rights Division, ―Initiative.‖
42 Ibid.; Community Relations Service, America‘s Peacemaker, Community Relations Service, U.S. Department of
Justice, Annual Report, Fiscal Year 2010; DOJ, Ten Years Later; Civil Rights Division, ―Initiative.‖ See
Ondray T. Harris, Director, DOJ Community Relations Service, ―Creating Positive Perception of Sikh Identity
in the U.S. Public,‖ speech at the 2nd Global Sikh Civil Rights Conference in Toronto, Canada, December 19,
2009.
43 Scott Atran, Senate Armed Services Subcommittee on Emerging Threats and Capabilities: Countering Violent
Extremism: Statement for the Record, Addendum-2, 111th Cong., 2nd sess., March 10, 2010, http://armed-
services.senate.gov/statemnt/2010/03%20March/Atran%2003-10-10.pdf. Hereinafter: Atran Testimony,
March 10, 2010.
44 Brett Hovington, House Committee on Homeland Security, Subcommittee on Intelligence, Information Sharing,
and Terrorism Risk Assessment: Working with Communities to Disrupt Terror Plots: Statement for the
Record, 111th Cong., 2nd sess., March 17, 2010, http://homeland.house.gov/SiteDocuments/20100317103507-
03554.pdf. Hereinafter: Hovington Testimony, March 17, 2010.
45 Hovington Testimony, March 17, 2010. See also: FBI, ―Building Trust: The Arab, Muslim, and Sikh Advisory
Council,‖ June 1, 2009, http://washingtondc.fbi.gov/trust060109.htm.
46 Hovington Testimony, March 17, 2010.
47 Atran Testimony, March 10, 2010.
48 Nicole J. Henderson et al., Policing in Arab-American Communities After September 11, National Institute of
Justice, Washington, DC, July 2008, p. ii. For the full study, see Nicole J. Henderson et al., Law Enforcement
and Arab American Community Relations After September 11, 2001: Engagement in a Time of Uncertainty,
Vera Institute of Justice, New York, NY, June 2006. As its title clearly suggests, this project examined the
experiences of Arab-Americans, two thirds of whom are Christian.
49 Discussion with CRS, April 7, 2010. Sageman is an independent researcher on terrorism, founder of Sageman
Consulting, LLC, and author of Leaderless Jihad: Terror Networks in the Twenty-First Century (University of
Pennsylvania Press, 2008).
50 Ibid.
51 Gartenstein-Ross and Grossman, Homegrown Terrorists in the U.S. and U.K, p. 60.
52 Neumann, Preventing Violent Radicalization., p. 19.
53 HSAC CVE Working Group, Spring 2010, p 6.
Jerome P. Bjelopera
48
54 Samantha Henry, ―NJ Muslims, Officials Discuss NYPD Surveillance,‖ Associated Press, March 3, 2012.
Hereinafter: Henry ―NJ Muslims, Officials.‖ Chris Hawley, NYPD Monitored Muslim Students All Over
Northeast,‖ Associated Press, February 18, 2012.
55 Samantha Henry, ―NJ FBI Says NYPD Monitoring Damaged Muslims‘ Trust,‖ Associated Press, March 8, 2012.
56 Henry, ―NJ Muslims, Officials;‖ Jason Grant, ―Recent NYPD Spying Uproar Shakes FBI‘s Foundations in N.J.
Terror Intelligence,‖ Star-Ledger, March 7, 2012.
57 Christopher Baxter, ―Secret NYPD Surveillance in N.J. Was Not So Secret, Former Officials Say,‖ Star-Ledger,
March 6, 2012.
58 New Jersey Office of the Attorney General, press release, ―Office of the Attorney General Takes Steps to Address
Out-of-State Law Enforcement Activity in New Jersey Following Fact-Finding Review,‖ May 24, 2012.
59 Alejandro J. Beutel, ―Muslim Americans and U.S. Law Enforcement: Not Enemies, But Vital Partners,‖ The
Christian Science Monitor, December 30, 2009. For more information on controversies surrounding
informants, see Peter Finn, ―Documents Provide Rare Insight Into FBI‘s Terrorism Stings, Washington Post,
April 13, 2012; Jerry Markon, ―Lawsuit Alleges FBI Violated Muslims‘ Freedom of Religion,‖ Washington
Post, February 22, 2011; Jerry Markon, ―Mosque Infiltration Feeds Muslims‘ Distrust of FBI,‖ Washington
Post, December 5, 2010; Salvador Hernandez, ―Release Terms Eased for Man Accused of Lying About
Alleged Terrorist Ties,‖ The Orange County Register, June 11, 2010; Trevor Aronson, ―FBI Tries to Deport
Muslim Man for Refusing to be an Informant,‖ miaminewtimes.com, Oct 8, 2009; ―FBI Creates Climate of
Fear,‖ Orange County Register, Editorial, March 22, 2009; Teresa Watanabe and Paloma Esquivel, ―L.A. Area
Muslims Say FBI Surveillance Has a Chilling Effect on Their Free Speech and Religious Practices,‖ Los
Angeles Times, March 1, 2009, http://articles.latimes.com/2009/mar/01/local/memuslim1. Hereinafter:
Watanabe and Esquivel, March 1, 2009. Thomas Cincotta, ―From Movements to Mosques, Informants
Endanger Democracy,‖ The Public Eye, summer 2009. Hereinafter: Cincotta, ―From Movements to Mosques.‖
Lee Romney, ―Immigrant Says FBI Tried Threats to Make Him Spy,‖ Los Angeles Times, August 12, 2006;
Peter Waldman, ―A Muslim‘s Choice: Turn U.S. Informant or Risk Losing Visa,‖ Wall Street Journal, July 11,
2006.
60 Cincotta, ―From Movements to Mosques.‖
61 Quoted in Matthai Kuruvila, ―U.S. Muslims Debate How Much to Help FBI,‖ San Francisco Chronicle, April 6,
2009, http://articles.sfgate.com/2009-04-06/news/17193854_1_american-muslim-taskforce-muslim-commu
nityamerican-islamic-relations.
62 Quoted in Samantha Henry, ―Some Muslims Rethink Close Ties to Law Enforcement,‖ Associated Press, May 4,
2009.
63 Ibid. In March 2012, the American Civil Liberties Union (ACLU) asserted that the FBI had used outreach efforts
at mosques in California to gather intelligence. Much of the outreach activity critiqued by the ACLU occurred
several years ago. FBI denied that the outreach was used to gather intelligence. See
https://www.aclu.org/files/assets/aclu_eye_on_the_fbi_alert_-_community_outreach_as_intelligence_gathe
ring_0.pdf; Dan Levine, ―FBI Said to Have Gathered Intelligence on California Muslims,‖ Reuters, March 27,
2012.
64 Gillian Flaccus, ―Calif. Case Highlights Use of Mosque Informants,‖ Associated Press, March 1 2009.
65 Ibid.
66 Watanabe and Esquivel, March 1, 2009.
67 HSAC CVE Working Group, Spring 2010, p. 6.
68 Muslim Americans: Faith, Freedom, and the Future; Examining U.S. Muslims‘ Political, Social, and Spiritual
Engagement 10 Years After September 11, Abu Dhabi Gallup Center, August 2011, p. 25. Hereinafter:
Muslim Americans: Faith, Freedom, and the Future.
69 Letter from Richard C. Powers, FBI Assistant Director, to U.S. Senator Jon Kyl, April 28, 2009.
70 Transcript of Hearing, ―Rep. Frank R. Wolf Holds a Hearing on Justice Department Budget,‖ Political Transcript
Wire, March 1, 2012; DOJ, press release, ―Federal Judge Hands Downs Sentences in Holy Land Foundation
Case,‖ May 27, 2009, http://www.justice.gov/opa/pr/2009/May/09-nsd-519.html. For more on CAIR‘s origins
and relationship with the U.S. government, see Lorenzo Vidino, The New Muslim Brotherhood in the West
(New York: Columbia University Press, 2010), pp. 177-197. Since the summer of 2008, the FBI limited its
interactions with CAIR. See Department of Justice, Office of the Inspector General, Evaluation and Inspection
Division, Review of FBI Interactions with the Council on American Islamic Relations, (September 2013).
71 CAIR, press release, ―Top Internet Disinformation about CAIR.‖
72 Scott Shane, ―Congressional Hearing Puts Muslim Civil Rights Group in the Hot Seat Again,‖ New York Times,
March 11, 2011.
Countering Violent Extremism in the United States
49
73 DHS recognizes a national network of state and local intelligence fusion centers. The network consists of centers
that function as ―collaborative effort[s] of two or more agencies that provide resources, expertise, and
information ... with the goal of maximizing their ability to detect, prevent, investigate, and respond to criminal
and terrorist activity.‖ See Fusion Center Guidelines: Developing and Sharing Information and Intelligence in
a New Era, August 2006, p. 12. http://it.ojp.gov/documents/fusion_center_guidelines_law_enforcement.pdf.
For a list of fusion centers, see Department of Homeland Security, ―Fusion Center Locations and Conta ct
Information,‖ http://www.dhs.gov/fusion-centerlocations-and-contact-information.
74 For more on suspicious activity reporting see CRS Report R40901, Terrorism Information Sharing and the
Nationwide Suspicious Activity Report Initiative: Background and Issues for Congress, by Jerome P.
Bjelopera.
75 See Robert Wasserman, Guidance for Building Communities of Trust, July 2010, pp. 4-5. Hereinafter:
Wasserman, Guidance for Building.
76 Strategic Implementation Plan, p. 9.
77 Wasserman, Guidance for Building, pp. 4-5.
78 Strategic Implementation Plan, pp. 12-18.
79 See http://www.nij.gov/nij/funding/forthcoming.htm. For the congressional appropriation, see P.L. 112-55, p.
615.
80 DHS, Fact Sheet, p. 2.
81 Eileen Sullivan, ―Police Chiefs Meet at WH on Homegrown Terror Fight,‖ Associated Press, January 18, 2012.
Hereinafter: Sullivan, ―Police Chiefs.‖
82 National Counterterrorism Center, ―Behavioral Indicators Offer Insights for Spotting Extremists Mobilizing for
Violence, July 22, 2011, p. 1.
83 Ibid.
84 Strategic Implementation Plan, p. 14.
85 HSAC CVE Working Group, Spring 2010, p. 20.
86 U.S. Congress, House of Representatives Committee on Homeland Security, Written Testimony of Janet
Napolitano, Secretary of the Department of Homeland Security, ―Understanding the Homeland Threat
Landscape Considerations for the 112th Congress,‖ 112th Cong., 1st sess., February 9, 2011, p. 5.
87 Ibid.
88 Strategic Implementation Plan, p. 15.
89 Dina Temple-Raston, ―New Concern About Bias In Counterterror Training,‖ National Public Radio, March 9,
2011; Thomas Cincotta, Manufacturing the Muslim Menace: Private Firms, Public Servants, and the Threat to
Rights and Security, 2011, Public Research Associates. For a discussion of CVE-related training efforts see
U.S. Government Accountability Office, Countering Violent Extremism: Additional Actions Could Strengthen
Efforts, GAO-13-79, October 2012.
90 Spencer Ackerman and Noah Shachtman, ―Video: FBI Trainer Says Forget ‗Irrelevant‘ al-Qaida, Target Islam,‖
Wired, September 20, 2011.
91 Letter from Sen. Joseph I. Lieberman and Sen. Susan M. Collins, to Eric H. Holder, Jr., Attorney General, and
Janet Napolitano, Secretary of Homeland Security, March 29, 2011. For an example of concerns voiced by
advocacy groups see Letter from American Civil Liberties Union et al., to Robert S. Mueller, III, Director,
Federal Bureau of Investigation, October 4, 2011. Some Members of Congress also wrote to Attorney General
Eric H. Holder, Jr. and then Secretary of Defense, Leon E. Panetta regarding potential censorship of training
material after the fallout surrounding the FBI‘s training efforts. See Letter from Rep. Sue Myrick et al. to Eric
H. Holder, Jr., Attorney General, and Leon E. Panetta, Secretary of Defense, December 15, 2011,
http://myrick.house.gov/uploads/
12152011_Letter%20to%20DOJ%20and%20DOD%20re%20CT%20training%20changes.pdf.
92 Joint Terrorism Task Forces (JTTFs) are locally based, multi-agency teams of investigators, analysts, linguists,
SWAT experts, and other specialists who investigate terrorism and terrorism-related crimes. Seventy-one of
the more than 100 JTTFs currently operated by DOJ and the FBI were created since 9/11. Over 4,400 federal,
state, and local law enforcement officers and agentsmore than four times the pre-9/11 totalwork in them.
These officers and agents come from more than 600 state and local agencies and 50 federal agencies. See
Federal Bureau of Investigation, ―Protecting America from Terrorist Attack: Our Joint Terrorism Task
Forces.‖
93 Spencer Ackerman, ―Obama Orders Government to Clean Up Terror Training,‖ Wired, November 29, 2011.
Hereinafter: Ackerman, ―Obama Orders.‖
94 FBI, press release, ―FBI Launches Comprehensive Review of Training Program,‖ September 20, 2011.
Jerome P. Bjelopera
50
95 James M. Cole, Deputy Attorney General, memorandum for heads of DOJ components and United States
Attorneys, ―Training Guiding Principles,‖ March 20, 2012. Hereinafter, Cole, memorandum.
96 Letter from Greg Fowler, Special Agent in Charge, FBI Portland Division, to Community Partners, March 28,
2012.
97 Ackerman, ―Obama Orders.‖
98 CRCL, Countering Violent Extremism (CVE) Training Guidance and Best Practices, 2011,
http://training.fema.gov/ EMIWeb/docs/shared/CVE%20Training%20Guidance.pdf. Hereinafter: CRCL,
Training Guidance. The Federal Emergency Management Agency (FEMA) also issued a bulletin regarding the
same issues. FEMA grants can be used for CVE training. See FEMA, Grant Programs Directorate Information
Bulletin, October 7, 2011.
99 CRCL, Training Guidance. DHS defines ―resiliency‖ as the ―ability to resist, absorb, recover from or successfully
adapt to adversity or a change in conditions.‖ See; HSAC, Community Resilience Task Force
Recommendations,‖ June 2011, p. 8.
100 Cole, memorandum; FBI, The FBI‘s Guiding Principles: Touchstone Document on Training 2012, March 2012.
101 Empowering Local Partners, p. 2.
102 Jamie Bartlett and Carl Miller, The Power of Unreason: Conspiracy Theories, Extremism, and Counter-
Terrorism, Demos, London, August 29, 2010, pp. 21, 39.
103 Sullivan, ―Police Chiefs.‖
104 Ibid., p. 18.
105 Written Statement of Michael Leiter; Director, National Counterterrorism Center; U.S. Congress, Senate
Committee on Homeland Security and Governmental Affairs, Nine Years after 9/11: Confronting the Terrorist
Threat to the Homeland, 111th Cong., 2nd sess., September 22, 2010, p. 8.
106 Strategic Implementation Plan, p. 19.
107 Ibid., p. 20.
108 ―Working to Counter Online Radicalization to Violence in the United States,‖ February 5, 2013,
http://www.whitehouse.gov/blog/2013/02/05/working-counter-online-radicalization-violence-united-states.
109 Ibid.
110 Ibid., p. 18
111 See CRS Report R42406, Congressional Oversight of Agency Public Communications: Implications of Agency
New Media Use, by Kevin R. Kosar, for information regarding Congress‘s role in oversight of federal public
communications activities.
112 This count includes four responsibilities given to the National Task Force for engagement under the SIP. Both
DHS and DOJ are lead agencies in the task force.
113 Robert F. Godec, Principal Deputy Director for Counterterrorism at the Department of State, U.S.
Counterterrorism Policy,‖ an address before the Global Young Leaders Conference, Washington, DC; June 30,
2010.
114 Muslim Americans: Faith, Freedom, and the Future, p. 25.
115 Qamar-ul Huda, The Diversity of Muslims in the United States: Views as Americans, United States Institute of
Peace, Special Report 159, Washington, DC, February 2006. See also: Pew Research Center, Muslim
Americans: No Signs of Growth in Alienation or Support for Extremism, August 2011, pp. 13-21.
116 Aside from general mention in the Strategic Implementation Plan, p. 10.
117 Prevent Strategy, p. 54.
118 Association of Chief Police Officers, National Channel Referral Figures, http://www.acpo.police.uk/
ACPOBusinessAreas/PREVENT/NationalChannelReferralFigures.aspx.
119 Empowering Local Partners, p. 4.
120 OJJDP, OJJDP Comprehensive Gang Model: Planning for Implementation, May 2009, p. 2. Hereinafter: OJJDP,
Comprehensive Gang Model.
121 OJJDP, Comprehensive Gang Model, p. 6.
122 National Gang Center, ―About the OJJDP Comprehensive Gang Model,‖ http://www.nationalgangcenter.gov/
Comprehensive-Gang-Model/About. ―Suppression‖ was not emphasized in the Obama Administration‘s
national CVE strategy‘s description of the Comprehensive Gang Model. The other components of the model
were mentioned. See Empowering Local Partners, p. 4.
123 OJJDP, Comprehensive Gang Model, p. 6.
124 Empowering Local Partners, p. 2.
125 Prevent Strategy, p. 7.
126 Dina Temple-Raston, ―White House Unveils Counter-Extremism Plan,‖ NPR, August 3, 2011.
Countering Violent Extremism in the United States
51
127 ―ACLU Lens: Obama Plan to Fight Violent Extremism a Step in the Right Direction, But...‖ ACLU Blog of
Rights, August 3, 2011, http://www.aclu.org/blog/national-security/aclu-lens-obama-plan-fight-violent-
extremism-step-rightdirection.
128 Strategic Implementation Plan, p. 18.
129 Neumann, Preventing Violent Radicalization, p. 41.
130 Strategic Implementation Plan, p. 6.
131 Prevent Strategy, p. 36.
132 Strategic Implementation Plan, p. 6.
133 Neumann, Preventing Violent Radicalization, p. 7.
134 Ibid., p. 8.
135 Strategic Implementation Plan, p. 4.
136 Muslim Americans: Faith, Freedom, and the Future, p. 23.
International Journal of Terrorism and Political Hot Spots ISSN: 1932-7889
Volume 9, Number 1 © Nova Science Publishers, Inc.
DETENTION OF U.S. PERSONS
AS ENEMY BELLIGERENTS*
Jennifer K. Elsea
SUMMARY
The detainee provisions passed as part of the National Defense Authorization Act for
FY2012, P.L. 112-81, affirm that the Authorization for Use of Military Force (AUMF),
P.L. 107-40, in response to the terrorist attacks of September 11, 2001, authorizes the
detention of persons captured in connection with hostilities. The act provides for the first
time a statutory definition of covered persons whose detention is authorized pursuant to
the AUMF. During debate of the provision, significant attention focused on the
applicability of this detention authority to U.S. citizens and other persons within the
United States. The Senate adopted an amendment to clarify that the provision was not
intended to affect any existing law or authorities relating to the detention of U.S. citizens
or lawful resident aliens, or any other persons captured or arrested in the United States.
This report analyzes the existing law and authority to detain U.S. persons, including
American citizens and resident aliens, as well as other persons within the United States
who are suspected of being members, agents, or associates of Al Qaeda or possibly other
terrorist organizations as ―enemy combatants.‖
The Supreme Court in 2004 affirmed the President‘s power to detain ―enemy
combatants,‖ including those who are U.S. citizens, as part of the necessary force
authorized by Congress after the terrorist attacks of September 11, 2001. In Hamdi v.
Rumsfeld, a plurality held that a U.S. citizen allegedly captured during combat in
Afghanistan and incarcerated at a Navy brig in South Carolina is entitled to notice and an
opportunity to be heard by a neutral decision maker regarding the government‘s reasons
for detaining him. On the same day, the Court in Rumsfeld v. Padilla overturned a lower
court‘s grant of habeas corpus to another U.S. citizen in military custody in South
Carolina on jurisdictional grounds, leaving undecided whether the authority to detain also
applies to U.S. citizens arrested in the United States by civilian authorities. Lower courts
that have addressed the issue of wartime detention within the United States have reached
conflicting conclusions. While the U.S. Court of Appeals for the Fourth Circuit
ultimately confirmed the detention authority in principle in two separate cases (one of
which was subsequently vacated), the government avoided taking the argument to the
Supreme Court by indicting the accused detainees for federal crimes, making their habeas
appeals moot and leaving the law generally unsettled. A federal judge enjoined the
detention of persons on the basis of providing support to or associating with belligerent
parties under one prong of the definition enacted as Section 1021 of the National Defense
* This is an edited, reformatted and augmented version of a Congressional Research Service publication, No.
R42337, dated January 23, 2014.
Jennifer K. Elsea
54
Authorization Act for FY2012, P.L. 112-81 (Hedges v. Obama), but the decision has
been reversed on appeal on the basis of standing.
This report provides a background to the legal issues presented, followed by a brief
introduction to the law of war pertinent to the detention of different categories of
individuals. An overview of U.S. practice during wartime to detain persons deemed
dangerous to the national security is presented. The report concludes by discussing
Congress‘s role in prescribing rules for wartime detention, subsequent legislation in the
112th Congress that addresses the detention of U.S. persons, and legislative proposals in
the 113th Congress to further address the issue (H.R. 1960, S. 1147, H.R. 2325, and H.R.
3304.
The detainee provisions passed as part of the National Defense Authorization Act for
FY2012 (2012 NDAA; P.L. 112-81), affirm that the Authorization for Use of Military Force
(AUMF)1 in response to the terrorist attacks of September 11, 2001, authorize the detention of
persons captured in connection with hostilities. The act provides for the first time a statutory
definition of covered persons whose detention is authorized pursuant to the AUMF.2 During
consideration of the detention provision, much of the debate focused on the applicability of
this detention authority to U.S. citizens and other persons within the United States.3 Congress
ultimately adopted a Senate amendment to clarify that the provision is not intended to affect
any existing law or authorities relating to the detention of U.S. citizens or lawful resident
aliens, or any other persons captured or arrested in the United States.4 This report analyzes the
existing law and authority to detain, as ―enemy combatants,‖5 U.S. persons, which, for the
purpose of this report means persons who are generally understood to be subject to U.S.
territorial jurisdiction or otherwise entitled to constitutional protections; that is, American
citizens, resident aliens, and other persons within the United States.
BACKGROUND
In June, 2004, the Supreme Court handed down a series of opinions related to wartime
detention authority.6 In Hamdi v. Rumsfeld,7 a plurality of the Court held that a U.S. citizen
allegedly captured during combat in Afghanistan and incarcerated at a Navy brig in South
Carolina could be held as an enemy combatant as part of the necessary force authorized by
Congress after the terrorist attacks of September 11, 2001, but that he was entitled to notice
and an opportunity to be heard by a neutral decision maker regarding the government‘s
reasons for detaining him. The government instead reached an agreement with the petitioner
that allowed him to return to Saudi Arabia, where he also holds citizenship, subject to certain
conditions. On the same day, the Court in Rumsfeld v. Padilla8 overturned a lower court‘s
grant of habeas corpus to another U.S. citizen in military custody in South Carolina on
jurisdictional grounds, sending the case to a district court in the Fourth Circuit for a new trial.
The vacated decision of the U.S. Court of Appeals for the Second Circuit had held that the
circumstance of a U.S. citizen arrested in the United States on suspicion of planning to carry
out a terrorist attack there was fundamentally different from the case of a citizen captured on
the battlefield overseas,9 and that the detention of such a citizen without trial was therefore
precluded by the Non-Detention Act, 18 U.S.C. Section 4001(a),10 which provides that no
U.S. citizen may be detained except pursuant to an act of Congress. A plurality of the Court
Detention of U.S. Persons As Enemy Belligerents
55
found in Hamdi that the President‘s detention of a U.S. citizen captured on the battlefield is
not foreclosed by the Non-Detention Act because an act of Congress, the AUMF, explicitly
authorized such detention, but emphasized the narrow limits of the authority it was
approving:11
The AUMF authorizes the President to use ―all necessary and appropriate force‖
against ―nations, organizations, or persons‖ associated with the September 11, 2001,
terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against
the United States in Afghanistan as part of the Taliban, an organization known to have
supported the al Qaeda terrorist network responsible for those attacks, are individuals
Congress sought to target in passing the AUMF. We conclude that detention of
individuals falling into the limited category we are considering, for the duration of the
particular conflict in which they were captured, is so fundamental and accepted an
incident to war as to be an exercise of the ―necessary and appropriate force‖ Congress has
authorized the President to use.12
The plurality went on to describe the kind of detention it had in mind was the traditional
practice of detaining prisoners of war13 under long-standing law of war principles:
Further, we understand Congress‘ grant of authority for the use of ―necessary and
appropriate force‖ to include the authority to detain for the duration of the relevant
conflict, and our understanding is based on longstanding law-of-war principles. If the
practical circumstances of a given conflict are entirely unlike those of the conflicts that
informed the development of the law of war, that understanding may unravel. But that is
not the situation we face as of this date. Active combat operations against Taliban
fighters apparently are ongoing in Afghanistan. The United States may detain, for the
duration of these hostilities, individuals legitimately determined to be Taliban combatants
who ―engaged in an armed conflict against the United States.‖ If the record establishes
that United States troops are still involved in active combat in Afghanistan, those
detentions are part of the exercise of ―necessary and appropriate force,‖ and therefore are
authorized by the AUMF.14
Justice Souter, joined by Justice Ginsburg joined the plurality opinion to provide
sufficient votes to vacate the decision below and remand the case to give Hamdi an
opportunity to contest his detention. However, finding no explicit authority in the AUMF (or
other statutes) to detain persons as enemy combatants, they would have determined that 18
U.S.C. Section 4001(a) precludes the detention of American citizens as enemy combatants
altogether. They rejected the theory that the detention was authorized as a necessary incident
to the use of military force because ―the Government‘s stated legal position in its campaign
against the Taliban ... is apparently at odds with its claim here to be acting in accordance with
customary law of war and hence to be within the terms of the Force Resolution in its
detention of Hamdi.‖15 In other words, the two Justices appeared to agree in principle that the
AUMF could authorize the detention of prisoners of war, but took the view that the
government‘s failure to accord the Taliban detainees rights under the Geneva Convention
vitiated that authority.
Justice Scalia, joined by Justice Stevens, dissented, arguing that ―our constitutional
tradition has been to prosecute [U.S. citizens accused of waging war against the government]
in federal court for treason or some other crime‖16 unless Congress has suspended the Writ of
Habeas Corpus pursuant to the Constitution‘s Suspension Clause, Art. I, Section 9, cl. 2. They
Jennifer K. Elsea
56
viewed as ―unthinkable that the Executive could render otherwise criminal grounds for
detention noncriminal merely by disclaiming an intent to prosecute, or by asserting that it was
incapacitating dangerous offenders rather than punishing wrongdoing.‖ Under their view,
even if the AUMF did authorize detention in sufficiently clear language to overcome the
prohibition in 18 U.S.C. Section 4001(a) (which, in their view, clearly it did not), Hamdi‘s
detention would have been unconstitutional without a proper suspension of the Writ. Justice
Scalia described his position as pertaining only to U.S. citizens detained within the United
States (regardless of where captured),<